bell canada v. quebec (csst), [1988] 1 S.C.R. 749
Commission de la santé et de la sécurité du travail and Ginette Bilodeau Appellants
v.
Bell Canada Respondent
and
Joanne Carrière‑Laniel, Communications Workers of Canada, the Attorney General of Quebec and the Attorney General of Canada Mis en cause
indexed as: bell canada v. quebec (commission de la santé et de la sécurité du travail)
File No.: 19103.
1986: January 30; 1988: May 26.
Present: Dickson C.J. and Beetz, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for quebec
Constitutional law‑‑Applicability of provincial legislation‑‑Occupational health and safety‑‑Federal undertaking‑‑Whether provincial legislation regulating health and safety in the workplace constitutionally applicable to federal undertaking‑‑Double aspect theory‑‑Impairment‑‑Conflict with federal statute‑‑Constitution Act, 1867, ss. 91(29), in fine, 92(10), (13), (16)‑‑Act respecting occupational health and safety, S.Q. 1979, c. 63, ss. 33, 36, 37, 40 to 45‑‑Canada Labour Code, R.S.C. 1970, c. L‑1.
This appeal is part of a trilogy which also includes Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868, and Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897. The three appeals, which raise similar questions, were heard consecutively and essentially consolidated for purposes of the hearings. Different provisions of the same statute were at issue in this appeal and in Canadian National.
‑‑‑‑‑‑‑‑‑‑
A pregnant woman employed by Bell Canada expressed certain reservations about working on a VDT unit. In accordance with an agreement between Bell Canada and the union, her immediate superior offered her another position which she nevertheless refused. A month later, she gave her superior both a letter confirming that she was pregnant and a protective re‑assignment certificate (ss. 40 and 33 of the Act respecting occupational health and safety). Bell Canada challenged the protective re‑assignment application. The compensation officer of the Commission de la santé et de la sécurité du travail allowed the application and proceeded to pay the employee the compensation provided for in s. 36 of the Act. Bell Canada then presented a motion for evocation before the Superior Court, asking it to declare inter alia that ss. 33, 36, 37 and 40 to 45 of the Act do not apply to a federal undertaking. The Superior Court allowed the motion and the judgment was affirmed by a majority judgment of the Court of Appeal. This appeal raises two constitutional questions: whether ss. 33, 36, 37 and 40 to 45 of the Act are constitutionally applicable to Bell Canada; and, if so, are these sections inoperative in respect of Bell Canada in that they are incompatible or conflicting with federal legislation in the same area applicable to Bell Canada?
Held: The appeal should be dismissed. The first constitutional question is answered in the negative. In view of the answer to the first question, it is not necessary to answer the second.
(1) Inapplicability of provincial legislation
Although the objective of the Act respecting occupational health and safety is the elimination, at the source, of dangers to the health, safety and physical well‑being of workers, a detailed analysis of the whole of its provisions demonstrates that the pith and substance of the Act is working conditions, labour relations and the management of an undertaking. In entering the field of prevention of accidents in the workplace, as the legislator has the power to do, and in using, as probably could not be avoided in prevention matters, means such as the right of refusal, protective re‑assignment, detailed regulations, inspection and remedial orders, the legislator entered directly and massively into the field of working conditions and labour relations on the one hand and, on the other, into the field of the management and operation of undertakings. In doing so, the legislator precluded itself from aiming at and regulating federal undertakings by the Act.
The Act, characterized as above, cannot be applied to the federal undertakings mentioned in s. 91(29) and s. 92(10)a., b. and c. of the Constitution Act, 1867, without regulating essential parts of those undertakings and without making the Act, as a consequence of such an application, a statute dealing with matters that fall within the classes of subject mentioned in those subsections. For federal undertakings, working conditions and labour relations are matters falling within the classes of subject mentioned in s. 91(29) of the Constitution Act, 1867, and consequently are within the exclusive jurisdiction of Parliament. It follows that this primary and exclusive jurisdiction precludes the application to those undertakings of provincial statutes relating to labour relations and working conditions, since such matters are an essential part of the very management and operation of such undertakings, as with any commercial or industrial undertaking. This is one facet of a more general rule‑‑that of the exclusivity of competent jurisdiction‑‑against making works, things or persons under the special and exclusive jurisdiction of Parliament subject to provincial legislation, when such application would bear on the specifically federal nature of the jurisdiction to which such works, things or persons are subject. Since these matters are within the exclusive authority of Parliament, it is not necessary to consider whether there is a conflict between the federal and provincial legislation.
(2) Double aspect theory
The double aspect theory cannot be relied on to support the applicability of the provincial statute to federal undertakings. An examination of the preventive scheme of the Act respecting occupational health and safety and the preventive scheme created by the federal legislator in Part IV of the Canada Labour Code demonstrates that both legislators are pursuing exactly the same objective by similar techniques and means. The exact correspondence of these two objectives, set forth in ss. 2 of the Act and 79.1 of the Code, indicates that there are not two aspects and two purposes depending on whether the legislation is federal or provincial. The two legislators have legislated for the same purpose and in the same aspect. Yet they do not have concurrent legislative jurisdiction in the case at bar, but mutually exclusive jurisdictions.
The formulation of the double aspect suggested by the Court of Appeal is incorrect in that it is based on an artificial distinction: the Act is considered differently depending on whether it is viewed from the standpoint of employer‑employee relations (labour relations) or of the employee alone (his health and safety). Such a distinction is impossible. The provisions of the Act represent working conditions for workers as much as for employers, in view of the correlation between their rights and their obligations. The health and safety of workers are no more than a purely nominal "aspect" and a goal that cannot be attained except by means of a labour relations system based on reciprocal rights and obligations of employers and workers. Working conditions remain a global concept which cannot be divided, and the Act treats them as such. It is impossible to sever the objective sought‑‑the health and safety of workers‑‑from the nature of the working conditions through which that objective finds expression.
In Alltrans the British Columbia Court of Appeal relied on the double aspect theory in finding that the preventive scheme created by the legislation of that province is applicable to federal undertakings. However, the Court of Appeal's reasoning depends on a mistaken determination that the preventive scheme cannot constitutionally be severed from the compensatory scheme established by the same legislation. Provincial workmen's compensation schemes are applicable to federal undertakings because they are not labour relations schemes and they do not constitute working conditions: they do not intervene to compensate workers until after the latter's health or safety has been affected. They also do not impinge on the management or operation of undertakings. They are statutory insurance schemes of no‑fault collective liability which replace the former schemes of individual civil liability based on fault. In view of this distinction, when a compensatory scheme and preventive scheme are included in the same statute, it follows that one not only can but one must distinguish between the constitutional law classification of compensatory schemes and that of preventive schemes for purposes of their application to federal undertakings.
(3) Concept of impairment
The appellants and the Attorney General of Quebec argued that the Act does not impair the operations and functioning of Bell Canada. This argument might be relevant if it were held that the application of the Act does not bear upon working conditions and labour relations as well as the management of a federal undertaking. Yet precisely because it must be held that the Act encroaches on fields which fall within the exclusive jurisdiction of Parliament and is, for this reason, not applicable to federal undertakings, it is not relevant whether the Act impairs or not the operations and functioning of Bell Canada and Canadian National. In order for the inapplicability of provincial legislation rule to be given effect, it is sufficient that the provincial statute which purports to apply to the federal undertaking affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it. If the application of a provincial statute to a federal undertaking has the effect of impairing or paralyzing it, that a fortiori is an almost certain sign that such application bears upon the specifically federal nature of the undertaking and constitutes an encroachment on the exclusive legislative authority of Parliament. Various provisions of the Act are likely to impair the operations and functioning of federal undertakings, which is an additional reason for regarding it as inapplicable to those undertakings, regardless of any conflict between federal and provincial legislation.
(4) Conflict with federal legislation
A procedural conflict between the Canada Labour Code and the Act respecting occupational health and safety may suffice to render the provincial act inoperative if the conflict is irreconcilable or if it leads to a deadlock. While the mere duplication of two enactments certainly does not make the provincial act inoperative, the differences between the mechanisms resulting in re‑assignment in both statutes, between the rights conferred on workers under the two schemes, between the types of danger which give rise to the right, between the procedures and the avenues of appeal, appear to indicate a practical and functional incompatibility between the two groups of provisions. However, it is not necessary to decide this since the provincial statute is not applicable to Bell Canada.
Cases Cited
Followed: Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767, aff'g [1966] Q.B. 301; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; referred to: Schneider v. The Queen, [1982] 2 S.C.R. 112; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751; Dick v. The Queen, [1985] 2 S.C.R. 309; Derrickson v. Derrickson, [1986] 1 S.C.R. 285; Workmen's Compensation Board v. Canadian Pacific Railway Co., [1920] A.C. 184; Hodge v. The Queen (1883), 9 App. Cas. 117; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; Smith v. The Queen, [1960] S.C.R. 776; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Rio Hotel Ltd. v. New Brunswick (Liquor Licencing Board), [1987] 2 S.C.R. 59; Attorney‑General for Canada v. Attorney‑General for Alberta, [1916] 1 A.C. 588; Re Alltrans Express Ltd. and Workers' Compensation Board of British Columbia (1980), 116 D.L.R. (3d) 79, rev'd (1983), 149 D.L.R. (3d) 385, rev'd [1988] 1 S.C.R. 897; Reference re Legislative Jurisdiction over Hours of Labour, [1925] S.C.R. 505; Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178; Agence Maritime Inc. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 851; Attorney General of Canada v. St. Hubert Base Teachers' Association, [1983] 1 S.C.R. 498; Attorney‑General for Canada v. Attorney‑General for British Columbia, [1930] A.C. 111; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Northern Telecom Ltd v. Communications Workers of Canada, [1980] 1 S.C.R. 115; Cour des sessions de la paix du district de Montréal v. Association internationale des travailleurs en ponts, en fer structural et ornemental, local 711, [1970] C.A. 512; Re Field Aviation Co. and International Association of Machinists & Aerospace Workers Local Lodge 1579 (1974), 45 D.L.R. (3d) 751; Jebsens (U.K.) Ltd. v. Lambert (1975), 64 D.L.R. (3d) 574; Joyal c. Air Canada, [1976] C.S. 1211, rev. on other grounds [1982] C.A. 39; Re Culley and Canadian Pacific Air Lines Ltd., [1977] 1 W.W.R. 393; Re Attorney‑General of Quebec and A. & F. Baillargeon Express Inc. (1978), 97 D.L.R. (3d) 447; Re Canadian Pacific Ltd. and Attorney‑General of Alberta (1980), 108 D.L.R. (3d) 738; Bell Canada v. Commission de la santé et de la sécurité du travail, [1983] C.S. 677; Canadian Human Rights Commission v. Haynes (1983), 46 N.R. 381; Office de la construction du Québec c. Cie des chemins de fer nationaux du Canada, J.E. 83‑198; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91; Attorney‑General for Ontario v. Israel Winner, [1954] A.C. 541; Campbell‑Bennett Ltd. v. Comstock Midwestern Ltd., [1954] S.C.R. 207; Scowby v. Glendinning, [1986] 2 S.C.R. 226; Re Forest Industries Flying Tankers Ltd. and Kellough (1980), 108 D.L.R. (3d) 686; Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868, rev'g [1983] C.A. 31, rev'g [1982] C.S. 99.
Statutes and Regulations Cited
Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001.
Act respecting labour standards, R.S.Q., c. N‑1.1 [formerly S.Q. 1979, c. 45], ss. 52, 78, 79, 89, 94 [am. 1980, c. 5, s. 9], 122.
Act respecting occupational health and safety, S.Q. 1979, c. 63 [now R.S.Q., c. S‑2.1].
Act respecting the Ministère de la Santé et des Services sociaux, R.S.Q., c. M‑19.2, s. 1 [am. 1985, c. 23, ss. 12, 24].
Canada Labour Code, R.S.C. 1970, c. L‑1 [am. 1977‑78, c. 27], ss. 79, 79.1 [ad. 1984, c. 39, s. 17], 80 to 106.1.
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 46 [repl. 1979, c. 63, s. 275], 55.
Constitution Act, 1867, ss. 91(29), in fine, 92(10), (13), (16).
Constitution of the International Labour Organisation, 15 U.N.T.S. 40, preamble.
Industrial Health and Safety Regulations, B.C. Reg. 585/77.
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 4, art. 7.
Labour Code, R.S.Q., c. C‑27.
Minimum Wage Act, R.S.Q. 1977, c. S‑1.
Regulation respecting labour standards, R.R.Q. 1981, c. N‑1.1, r. 3.
Workers Compensation Act, R.S.B.C. 1979, c. 437.
Workmen's Compensation Act, R.S.Q. 1977, c. A‑3.
Authors Cited
Bradet, Denis et Bernard Cliche, Martin Racine et France Thibault. Droit de la santé et de la sécurité du travail: la loi et la jurisprudence commentées. Cowansville: Yvon Blais Inc., 1986.
David, Éric. "Le droit à la santé comme droit de la personne humaine" (1985), 2 R.Q.D.I. 63.
Gibson, Dale. "Interjurisdictional Immunity in Canadian Federalism" (1969), 47 Can. Bar Rev. 40.
Gibson, Dale. The `Federal Enclave' Fallacy in Canadian Constitutional Law" (1976), 14 Alta. L. Rev. 167.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Laskin, Bora. Laskin's Canadian Constitutional Law, vol. 1, 5th ed. By Neil Finkelstein. Toronto: Carswells, 1986.
Lippel, Katherine. "Droit des travailleurs québécois en matière de santé (1885‑1981)" (1981‑82), 16 R.J.T. 329.
Ontario, Ministry of Labour. Report on the Administration of the Occupational Health and Safety Act, vol. 1. By G. G. McKenzie et J. I. Laskin, 1987.
Québec. Ministre d'État au développement social. Santé et sécurité au travail. Québec: Éditeur officiel du Québec, 1978.
Rochefort, Daniel. "Difficultés d'application de la Loi sur la santé et la sécurité du travail". Dans Les aspects juridiques de la santé et de la sécurité au travail. Formation permanente du Barreau du Québec, cours 64, 1982.
Weiler, Paul C. "The Supreme Court and the Law of Canadian Federalism" (1973), 23 U.T.L.J. 307.
APPEAL from a judgment of the Court of Appeal for Quebec, [1984] C.A. 510, 16 D.L.R. (4th) 345, affirming a judgment of the Superior Court, J.E. 82‑1021, authorizing a writ of evocation to be issued. Appeal dismissed.
Yves Tardif and Henri Brun, for the appellants.
François Mercier, Q.C., and Raymond Buist, for the respondent.
Jean‑François Jobin, for the mis en cause the Attorney General of Quebec.
Gaspard Côté, Q.C., for the mis en cause the Attorney General of Canada.
English version of the judgment of the Court delivered by
1. Beetz J.‑‑
I‑‑Introduction
2. This appeal is the third of a trilogy. All three appeals raise similar questions which may be stated as one: is a provincial statute regulating health and safety in the workplace, like the statutes at issue, constitutionally applicable to a federal undertaking?
3. The first appeal is that of Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897 ("Alltrans"). The federal undertaking in question is a trucking business with exclusively interprovincial and international operations. The orders challenged by the undertaking are those of a report by an inspector of the Workers' Compensation Board (the "Board"). That report found certain breaches of the Industrial Health and Safety Regulations, B.C. Reg. 585/77 (the "Regulations"), and noted in particular that, in the maintenance and repair workshops of Alltrans Express Ltd., workers employed by Alltrans wore running shoes instead of the safety boots prescribed by the Regulations. The report ordered Alltrans Express Ltd. to ensure that its workers wore the regulation safety boots. It further ordered the business to establish and maintain a safety committee, in accordance with the Regulations. The Regulations were promulgated by the Board under the Workers Compensation Act, R.S.B.C. 1979, c. 437, and the inspector's report was made in accordance with that Act and the regulations adopted pursuant to it. Alltrans Express Ltd. by a petition asked the Court to declare the orders contained in the inspection report invalid on the ground that they fell within the exclusive legislative jurisdiction of the Parliament of Canada.
4. The second appeal is that of Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868 ("Canadian National"). A collision between two trains owned by Canadian National Railway Co. cost the lives of three employees of that federal undertaking and injured a fourth. An inspector, Christiane Courtois, initiated an investigation into the railway accident and sent subpoenas to Canadian National employees. In doing so, she was acting pursuant to ss. 62 and 177 to 193 of the Act respecting occupational health and safety, S.Q. 1979, c. 63 (the "Act"), which require an employer to prepare an accident report and empower an inspector appointed by the Commission de la santé et de la sécurité du travail (the "C.S.S.T.") to investigate and issue remedial orders requiring any person to comply with the Act or regulations and fixing a time within which such person must comply. Canadian National sought by evocation to halt the holding of this investigation on the ground, inter alia, that the Act does not constitutionally apply to them and that the inspector had no jurisdiction to hold the investigation.
5. Finally, in the appeal at bar ("Bell Canada"), the question is whether the Act, and in particular its ss. 33, 36, 37 and 40 to 45, regarding the protective re‑assignment of a pregnant worker, are constitutionally applicable to respondent Bell Canada, another federal undertaking.
6. If it is found that the Act is constitutionally applicable to Canadian National and to Bell Canada, it will also be necessary to decide whether the provisions of this provincial Act are rendered inoperative on account of their inconsistency with the valid provisions of a federal statute. This second question no longer arises in Alltrans, as all parties now concede that there is no conflict between the provincial and the federal statutes.
7. In Alltrans, the Attorney General of British Columbia and the Attorney General of Canada intervened at trial, the former in support of the Board's position and the latter in support of the position of Alltrans Express Ltd. The Attorney General of Quebec also intervened in Alltrans in this Court, where he supported the conclusions of the Attorney General of British Columbia.
8. The Attorney General of Quebec and the Attorney General of Canada were impleaded at trial in Canadian National and in Bell Canada, and in all courts they supported, in the one case, the position of C.S.S.T., and in the other, the positions of Canadian National and Bell Canada.
9. In this Court, the three appeals were heard consecutively in the order indicated above, but were essentially joined for purposes of the hearing. Counsel heard in the second and third appeals thus adopted arguments put forward in the first or the second, and also answered questions put by the Court in the first or second appeal. Additionally, the judgment of the Quebec Court of Appeal in Bell Canada was based, at least in part, on reasons of the British Columbia Court of Appeal in Alltrans, and the Superior Court judgment in Canadian National referred to the trial judgment in Alltrans.
10. As the three appeals were treated jointly to this extent, the applicable principles will only have to be reviewed once.
11. Finally, the provisions at issue in Canadian National and in Bell Canada are various provisions of the same statute, the Act. These provisions will have to be examined in the context of the Act as a whole and the general scheme of the Act looked at in order to characterize and classify it for constitutional purposes. Here again, it will only be necessary to examine the Act once.
12. It is the case at bar, heard last of the three, which, in my view, best lends itself to examination of the Act and of the applicable principles, and I will begin with it.
II‑‑Facts
13. The facts are not in dispute. The trial judge summarized them to the satisfaction of Monet J.A., dissenting in the Court of Appeal, and Beauregard and Tyndale JJ.A., in the majority, had no reservations in this regard. In its factum respondent accepted the statement of facts contained in appellants' factum, but added certain other facts alleged under oath in its motion for evocation, which in any case must be taken as proven at this stage of the proceedings.
14. The following composite statement closely follows these three summaries, and indeed largely adopts their wording:
The C.S.S.T. is an agency created by s. 137 of the Act. It is a corporation within the meaning of the Civil Code and is responsible, inter alia, for implementing the Act.
At all relevant times, Ginette Bilodeau was a compensation officer with C.S.S.T.
Bell Canada is a telecommunications undertaking incorporated by a special Act of the Parliament of Canada and has been declared to be for the general advantage of Canada. It operates a telecommunications network linking Quebec with Ontario and part of the Northwest Territories.
At all relevant times Joanne Carrière‑Laniel was employed by Bell Canada in Valleyfield as a telephone operator. The telephone exchange in which she worked handled, inter alia, long distance calls requiring operator assistance and the directory assistance service.
At all relevant times, the Communications Workers of Canada Union was certified by the Canada Labour Relations Board to represent Bell Canada employees, including Mrs. Carrière‑Laniel. It had negotiated a collective agreement with Bell Canada for the bargaining unit that included Mrs. Carrière‑Laniel. This agreement was in effect from March 30, 1980 to November 24, 1981. In it Bell Canada and the union agreed that a pregnant employee who was reluctant to work on a VDT unit had a choice of applying for unpaid leave or being assigned other duties within the bargaining unit. This agreement was first expressed in a letter and then in a memorandum of understanding, which was then incorporated in the collective agreement when it was renewed on March 22, 1982.
Bell Canada planned to convert the Valleyfield telephone exchange to VDT units on May 23, 1981. When Mrs. Carrière‑Laniel learned of her employer's intention in this regard, knowing she was pregnant, she expressed certain reservations to her immediate superior on May 5, 1981 about working with VDT units. On May 11, her superior offered her another position. Mrs. Carrière‑Laniel refused.
On May 23, 1981 the Valleyfield office was equipped with VDT units. Mrs. Carrière‑Laniel was then on leave until June 7. By various applications, the first of which was made on June 5, 1981, Mrs. Carrière‑Laniel obtained unpaid maternity leave for the period from June 8, 1981 to July 18, 1982. Mrs. Carrière‑Laniel has not been back to work for Bell Canada since May 23, 1981. She finally resigned on July 9, 1982.
In the meantime, on June 9, 1981 Mrs. Carrière‑Laniel gave her immediate superior a letter from a physician confirming that she was pregnant. On the same day she gave her superior a protective re‑assignment certificate (ss. 40 and 33 of the Act). On July 7, 1981, Bell Canada challenged this protective re‑assignment application on the form provided for the purpose.
Ginette Bilodeau had the responsibility of deciding on the application for protective re‑assignment by Mrs. Carrière‑Laniel. In an undated decision she allowed the application and proceeded to have the C.S.S.T. pay Mrs. Carrière‑Laniel the compensation provided for in s. 36 of the Act, in this case, the sum of $5,535.81.
15. By its motion in evocation Bell Canada is asking the Court to declare that the undated decision by Ginette Bilodeau, apparently already put into effect, was ultra vires the C.S.S.T. and cannot be set up against applicant, and if necessary to quash and set aside that decision. It is also asking the Court to declare that ss. 33, 36, 37 and 40 to 45 of the Act do not apply to it.
16. It may be added that if the Act does not apply to Bell Canada, the latter would not be required to pay Mrs. Carrière‑Laniel an indemnity amounting to five regular working days, which the C.S.S.T. directed it to pay its former employee pursuant to s. 36 of the Act.
III‑‑Summary of Applicable Principles
17. To facilitate an understanding of the judgments of the lower courts and the arguments put forward by the parties, I think it is best to summarize at the outset the rules which have so far been applied by the courts and in accordance with which this Court must resolve the question stated at the start of these reasons and presented by the three appeals. These rules are well known and most of them need only be stated in the form of propositions: a more critical study of them can be made when it comes time to apply them to the circumstances of the case at bar, namely the classification of the impugned legislation.
Proposition One
18. General legislative jurisdiction over health belongs to the provinces, subject to the limited jurisdiction of Parliament ancillary to the powers expressly conferred by s. 91 of the Constitution Act, 1867 or the emergency power relating to the peace, order and good government of Canada: Schneider v. The Queen, [1982] 2 S.C.R. 112, at p. 137, reasons of Dickson J.‑‑as he then was‑‑writing for seven judges of this Court. This jurisdiction has historically been seen as resting with the provinces under s. 92(16) of the Constitution Act, 1867, "Generally all Matters of a merely local or private Nature in the Province", although the considerable dimensions of this jurisdiction were probably not foreseen in 1867.
Proposition Two
19. In principle, labour relations and working conditions fall within the exclusive jurisdiction of the provincial legislatures: these matters fall into the class of subjects mentioned in s. 92(13) of the Constitution Act, 1867, "Property and Civil Rights in the Province": Toronto Electric Commissioners v. Snider, [1925] A.C. 396 ("Snider").
Proposition Three
20. Notwithstanding the rule stated in proposition two, Parliament is vested with exclusive legislative jurisdiction over labour relations and working conditions when that jurisdiction is an integral part of its primary and exclusive jurisdiction over another class of subjects, as is the case with labour relations and working conditions in the federal undertakings covered by ss. 91(29) and 92(10)a., b. and c. of the Constitution Act, 1867, that is undertakings such as Alltrans Express Ltd., Canadian National and Bell Canada. It follows that this primary and exclusive jurisdiction precludes the application to those undertakings of provincial statutes relating to labour relations and working conditions, since such matters are an essential part of the very management and operation of such undertakings, as with any commercial or industrial undertaking: Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248 (the "Postal Service Case 1948"); Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529 (the "Stevedoring Case"); Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767 ("Bell Canada 1966"). This third proposition reflects, at least in part, a constitutional theory which commentators who have criticized it have called the theory of "interjurisdictional immunity". I will return to this below.
21. It should however be noted that the rules stated in this third proposition appear to constitute only one facet of a more general rule: works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application, whether municipal legislation, legislation on adoption, hunting or the distribution of family property, provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction: Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367 ("Bonsecours"); Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751 ("Natural Parents"); Dick v. The Queen, [1985] 2 S.C.R. 309; Derrickson v. Derrickson, [1986] 1 S.C.R. 285.
Proposition Four
22. Several years before the exclusive legislative jurisdiction of Parliament over the working conditions and management of federal undertakings was recognized and established, the Judicial Committee of the Privy Council had held that provincial workmen's compensation schemes were applicable to federal undertakings: Workmen's Compensation Board v. Canadian Pacific Railway Co., [1920] A.C. 184 ("Workmen's Compensation Board").
23. Viscount Haldane, writing the reasons of the Judicial Committee, described the right of a victim of an industrial accident or the members of the victim's family as follows, at p. 191:
The right conferred...is the result of a statutory condition of the contract of employment...This right arises, not out of tort, but out of a workman's statutory contract.
24. However, in Bell Canada 1966, Martland J., writing the unanimous reasons for judgment, took a different view at pp. 773‑74 of the right conferred by the legislation impugned in Workmen's Compensation Board:
Compensation was payable not by the employer, but out of a fund administered by the Board to which employers were required to contribute. Viscount Haldane (p. 191) refers to the employee's right under the Act as the result of a "statutory condition of employment", but I think it is more accurately described as a statutory right. The Act did not purport to regulate the contract of employment. What it did do was to create certain new legal rights which were to be in lieu of all rights of action to which the employee or his dependants might otherwise have been entitled at common law or by statute.
25. It should be noted that, side by side with workmen's compensation statutes which have a compensatory purpose, legislators have in recent decades gradually adopted other legislation with a preventive purpose.
26. In British Columbia the preventive provisions, which are the only ones in question, were incorporated into the Workers Compensation Act which as its title indicates also contains compensatory provisions. Some have even concluded that the compensatory provisions have become a matter of secondary importance. This was observed by Lambert J.A., writing the reasons of the British Columbia Court of Appeal in Alltrans (1983), 149 D.L.R. (3d) 385, at p. 389:
In Mr. Justice Tysoe's report as commissioner on a commission of inquiry into the Workmen's Compensation Act of British Columbia dated November 25, 1965, and published by the Queen's Printer for British Columbia in 1966, he said, at p. 118, that the principal "purpose of the Act is not to furnish financial benefits; and that the first object is to keep work‑connected injuries to a minimum, and the second is the restoration of injured workmen, physically and economically".
27. In Quebec, the Workmen's Compensation Act, R.S.Q. 1977, c. A‑3, in force at the time of the events giving rise to these proceedings, was repealed in 1985 and replaced by the Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001. Both the former and the new industrial accident legislative regimes have retained their compensatory character, even though the 1985 statute is administered by the C.S.S.T., replacing the Commission des accidents du travail. By comparison, the very elaborate scheme of preventive measures is contained instead in the Act and also, in part, in the Act respecting labour standards, R.S.Q., c. N‑1.1.
28. What was held by the Judicial Committee in Workmen's Compensation Board to be applicable to a federal undertaking was the compensatory scheme established by the statute at issue in that case.
29. It is true that this statute also included a provision empowering the Board to enact preventive regulations, and the Judicial Committee mentions this provision at p. 190; but the primary purpose of the impugned legislation is determined by the Judicial Committee at p. 188:
It was passed in 1916, and its primary purpose is to confer on workmen, out of an accident fund which it established, compensation for personal injury by accident arising out of and in the course of their employment.
Proposition Five
30. Proposition five is the double aspect theory, which appears to have been stated for the first time in Hodge v. The Queen (1883), 9 App. Cas. 117, at p. 130:
...subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91.
31. It follows from this theory that two relatively similar rules or sets of rules may validly be found, one in legislation within exclusive federal jurisdiction, and the other in legislation within exclusive provincial jurisdiction, because they are enacted for different purposes and in different legislative contexts which give them distinct constitutional characterizations.
32. Thus the prohibition from driving a motor vehicle imposed following a conviction for driving while intoxicated may be the penalty for a criminal offence, validly enacted by Parliament, just as the suspension of a driving licence may be validly prescribed by a province for highway safety reasons: Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396.
33. Similarly, false prospectuses may be the subject of valid federal legislation from the criminal law standpoint, as well as of equally valid provincial legislation from the standpoint of regulating securities trading: Smith v. The Queen, [1960] S.C.R. 776.
34. Similarly, rules regarding "insider trading" may be regarded as belonging to corporate law within exclusive federal jurisdiction in the case of federally‑incorporated companies and as regulation of trade in securities within exclusive provincial jurisdiction, applicable to federally‑incorporated companies, provided the latter are not singled out and their essential powers are not impaired: Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161.
35. So too public nudity may be prohibited by Parliament in a criminal law context, and also be the subject of provincial regulation of entertainment in public houses operated under a provincial licence: Rio Hotel Ltd. v. New Brunswick (Liquor Licencing Board), [1987] 2 S.C.R. 59.
36. However, in Attorney‑General for Canada v. Attorney‑General for Alberta, [1916] 1 A.C. 588, Viscount Haldane issued a warning about the double aspect theory. This is what he said about this theory, at p. 596:
...[it] is now well established, but none the less ought to be applied only with great caution . . . .
37. The reason for this caution is the extremely broad wording of the exclusive legislative powers listed in ss. 91 and 92 of the Constitution Act, 1867 and the risk that these two fields of exclusive powers will be combined into a single more or less concurrent field of powers governed solely by the rule of paramountcy of federal legislation. Nothing could be more directly contrary to the principle of federalism underlying the Canadian Constitution: see Laskin's Canadian Constitutional Law (5th ed. 1986), vol. 1, at p. 525.
38. The double aspect theory is neither an exception nor even a qualification to the rule of exclusive legislative jurisdiction. Its effect must not be to create concurrent fields of jurisdiction, such as agriculture, immigration and old age pensions and supplementary benefits, in which Parliament and the legislatures may legislate on the same aspect. On the contrary, the double aspect theory can only be invoked when it gives effect to the rule of exclusive fields of jurisdiction. As its name indicates, it can only be applied in clear cases where the multiplicity of aspects is real and not merely nominal.
IV‑‑Judgments of Lower Courts
39. After reviewing the case law and analysing the Act, Marquis J. of the Superior Court held that the provisions of the Act impugned here, and indeed the Act in its entirety, are intended to apply to working conditions, and that by the numerous day‑to‑day obligations which they impose on Bell Canada they have a significant impact on the administration or management of that federal undertaking. He accordingly concluded that the impugned provisions are constitutionally inapplicable to Bell Canada. He therefore allowed the latter's motion and authorized a writ of evocation to be issued. His judgment is summarized at No. 82‑1021 of Jurisprudence Express.
40. The judgment of Marquis J. was affirmed by a majority judgment of the Court of Appeal, but on quite different grounds: [1984] C.A. 510.
41. The Court of Appeal and the Superior Court differed first as regards the characterization and classification of the Act. On this point the Court of Appeal appeared to be unanimous, the majority judges Beauregard and Tyndale JJ.A. saying they concurred in the view of the dissenting judge, Monet J.A.
42. Monet J.A., after summarizing the principal provisions of the Act, referred at p. 515 to the argument of the C.S.S.T. which emphasized the contrast between the provisions of the Act and those of the Labour Code, R.S.Q., c. C‑27, and of the Act respecting labour standards, [TRANSLATION] "If the latter undeniably deal with working conditions", it was decided, "the former clearly deals with occupational health". At pages 515 and 516, Monet J.A. wrote that the Act cannot [TRANSLATION] "affect an essential part of the operations and management" of a federal undertaking, nor does it apply to [TRANSLATION] "working conditions in the sense that these terms are used in a negotiated collective agreement, e.g., hours of work, salaries, employment". Finally, Monet J.A. found the solution of the problem to lie in the British Columbia Court of Appeal's judgment which forms the first case in this trilogy, Re Alltrans Express Ltd. and Workers' Compensation Board of British Columbia, supra. At page 516 of the Court of Appeal reports, Monet J.A. wrote:
[TRANSLATION] The two questions submitted to the [British Columbia] Court of Appeal are related to that raised in this case. They were set forth as follows by Lambert J.A.:
The first is whether the legislative power of the Legislature of British Columbia enables it to make laws in relation to health and safety in the workplace that could extend in their general application to federal undertakings. If the answer is "No" that ends the matter. The appeal would be dismissed.
The second issue arises if the answer to the first issue is "Yes". It is whether, if the provincial laws in relation to health and safety in the workplace largely duplicate and, to some extent, supplement, but do not contradict, federal laws in relation to health and safety in the workplace for federal undertakings, the constitutionally valid provincial laws would cease to be operative for federal undertakings in the province.
[TRANSLATION] To the first question, the Court of Appeal replied in the affirmative. We will return to the second question later. At this point, however, I would like to quote the Court's decision:
The first issue can be stated in another way. The matter that we are considering is health and safety in the workplace of a federal undertaking. Is that a double aspect matter or a single aspect matter? I think it is a double aspect matter and both the federal regulations and the provincial regulations are constitutionally valid and applicable to a federal undertaking.
[TRANSLATION] With respect, I, myself, would adopt the reasons of the Court of Appeal in this case; since the case has been reported, it seems superfluous to me to paraphrase the reasons here and I will simply quote the conclusion:
It follows that the Industrial Health and Safety Regulations made under the Workers Compensation Act could extend in their general application to federal undertakings. The answer to the first issue is "Yes".
43. Monet J.A. concluded that the provisions impugned in the case at bar also applied to Bell Canada. Beauregard J.A., with the concurrence of Tyndale J.A., wrote at p. 519:
[TRANSLATION] I share the opinion of Monet J.A. that the object of the dispute is related to both health and labour relations.
44. Since the reasons of the British Columbia Court of Appeal in Alltrans were adopted by the Quebec Court of Appeal in the case at bar, they must now be considered.
45. It should first be noted that the British Columbia Court of Appeal reversed the decision of Bouck J. of the British Columbia Supreme Court, who held that the orders contained in the inspection report made pursuant to the Regulations and the Workers Compensation Act could not be set up against Alltrans Express Ltd. on alternative grounds that, on the one hand, the Board did not have the necessary jurisdiction to regulate the working conditions in a federal undertaking, and on the other hand, the field was occupied by federal regulations adopted pursuant to the Canada Labour Code, R.S.C. 1970, c. L‑1, and similar to the provincial regulations: Re Alltrans Express Ltd. and Workers' Compensation Board of British Columbia (1980), 116 D.L.R. (3d) 79. The British Columbia Court of Appeal, quite properly relying on the judgment of this Court in Multiple Access Ltd. which was rendered after the judgment of Bouck J., rejected any possibility of a real conflict between the federal and provincial regulations, which alone could make the provincial regulations inoperative.
46. On the other point, namely the characterization and classification of the impugned provincial regulations, the British Columbia Court of Appeal relied on the double aspect theory in finding the provincial regulations applicable to Alltrans Express Ltd. Lambert J.A. wrote the unanimous reasons of the Court of Appeal. He said in part at pp. 388‑90, including a passage cited by Monet J.A. of the Quebec Court of Appeal:
The first issue can be stated in another way. The matter that we are considering is health and safety in the work place of a federal undertaking. Is that a double aspect matter or a single aspect matter? I think it is a double aspect matter and both the federal regulations and the provincial regulations are constitutionally valid and applicable to a federal undertaking.
47. Lambert J.A. then referred to the application of the double aspect theory in Multiple Access Ltd., supra, and he wrote:
The provincial aspect of the matter lies in the concern of the province, generally, for public health and for medical and hospital care, and, more particularly, for the scheme of worker safety, treatment and compensation embodied in the Workers Compensation Act. It relates to workers, generally, as workers in the work place. Workers in federal undertakings will use provincial facilities if they are injured or suffer from industrial disease.
48. Lambert J.A. then cited a passage from the report of Tysoe J. which I cited at the start of these reasons, indicating that the primary purpose of the British Columbia Workers Compensation Act is not to furnish financial benefits but to keep work‑connected injuries to a minimum and only secondarily to provide financial compensation to injured workers.
49. Lambert J.A. observed:
That statement underscores the provincial aspect of the matter.
50. Lambert J.A. referred to the cases recognizing that workmen's compensation schemes apply to federal undertakings, such as Workmen's Compensation Board, and went on:
Counsel for Alltrans and for the Attorney‑General of Canada concede that the provisions of the Workers Compensation Act relating to the payment of assessments, the compensation of injured workmen, and the elimination of rights of action against employers and other workmen apply to federal undertakings and the employees in those undertakings. But they want to cut away what Mr. Justice Tysoe calls the first object of the Act, namely, worker safety. I do not think that the Act should be severed in that way for federal undertakings. To do so would raise difficult questions of law and fact about risk categories and the levy on employers.
I turn now to the federal aspect. This relates not to workers, generally, as workers in the work place, but to workers in specific relationship to their employers, and to the operation and management of their employers' businesses. In that aspect, health and safety in the work place may be or may become a working condition in the employer‑employee relationship. As such, the Canada Labour Code would apply to that condition in that relationship. Among the relevant cases are the Reference re Industrial Relations and Disputes Investigation Act, etc., [1955] 3 D.L.R. 721, (1955) S.C.R. 529 and Commission du Salaire Minimum v. Bell Telephone Co. of Canada, supra.
In balancing the federal aspect and the provincial aspect in the way contemplated by Mr. Justice Dickson in Multiple Access Ltd. v. McCutcheon, I have concluded that the two aspects in this case are of roughly equal importance and that the Constitution Act, 1867 contemplates that both should live.
51. From this Lambert J.A. concluded that the general provisions of the Regulations adopted pursuant to the Workers Compensation Act applied to federal undertakings. Lambert J.A. made only one qualification to this conclusion: he indicated that it would perhaps not be possible to go so far as the shutting‑down of a federal undertaking as a means of enforcing provincial regulations, but he expressed the view that the imposition of a fine or a higher penalty assessment would not have the effect of seriously impairing the operations of federal undertakings.
52. On the other question, the conflict between federal and provincial regulations, Lambert J.A. held that the relationship between the regulations was one of similarity rather than conflict, and applying Multiple Access Ltd. he held that both sets of regulations should be applied.
53. It is on this other question that the Quebec Court of Appeal was divided, as regards federal and provincial regulations, though not the ones at issue in Alltrans. Monet J.A., dissenting, recognized the differences that exist between the dispute resolution procedures contemplated by the federal and by the provincial statutes, but in his view the conflict must go beyond procedure if the provincial regulations are to be inoperative. Beauregard J.A., concurred in by Tyndale J.A., found the conflict irreconcilable, at p. 519:
[TRANSLATION] The provisions of ss. 33 to 45 of the provincial legislation provide a specific mechanism for the regulation of the dispute. But section 82 of the federal Act provides another mechanism and an arbitration board different from that provided for by the provincial legislation.
If the employee had the right to have the dispute regulated by the mechanism provided for in the provincial legislation and before the arbitration board therein provided for, the employer would himself have the right to have the dispute settled according to the provisions of the federal Act and to have the case determined by an arbitration board as provided by that Act.
Thus, there is an impasse and the only way to escape it is to say that in the case of Bell Canada whose labour relations are regulated by the Canada Labour Code, the provisions of ss. 33, 36, 37, 40, 41, 42, 43, 44 and 45 of the Act respecting occupational health and safety do not apply.
I would reject the appeal, with costs.
54. The judgments of the lower courts in Canadian National deal primarily with the powers conferred by the Act on a C.S.S.T. inspector to conduct an investigation and issue remedial orders. They will be dealt with in greater detail in the reasons in that case. However, they also affect the characterization and classification of the Act. Brassard J. of the Superior Court authorized a writ of evocation to be issued for reasons summarized by the headnote writer in part as follows, at [1982] C.S. 99:
[TRANSLATION] Although the province has jurisdiction over health and safety in the workplace (B.N.A. Act, 92(13)) and the investigation may affect the safety of workers in the province, it must necessarily have determining effects on the operation of applicant's federal undertaking: safety in the workplace, working conditions and methods of operation are a vital part of the operation of a railway. No distinction can be made between the investigation and the recommendations and orders that follow.
55. Brassard J. further concluded that the Act and Part IV of the Canada Labour Code, dealing with "Safety of Employees", are inconsistent as regards remedial orders.
56. The Superior Court judgment in Canadian National was reversed in part by a majority judgment of the Court of Appeal: [1983] C.A. 31. The majority reasons, written by Bisson J.A., did not discuss the characterization and classification of the Act at any length. At page 39, however, he observed that [TRANSLATION] "the fields of labour, of the person and protection for the person, are primarily within provincial legislative jurisdiction". On the same page, Bisson J.A. did not refer expressly to the double aspect theory but noted that in the federal system "overlapping jurisdictions" sometimes occur. The headnote writer summarized the remainder of Bisson J.A.'s reasons on classification at p. 31:
[TRANSLATION] The absolutist argument that certain undertakings under Parliament's jurisdiction form part of an exclusive federal preserve must be rejected in favour of a less comprehensive theory.
57. Bisson J.A. concluded at p. 41 that there is no basis for saying that the Act is entirely inapplicable to Canadian National. He accordingly allowed the appeal but quashed a duces tecum issued by the investigator, which in his opinion would have authorized an unwarranted investigation into the operations and internal workings of undertaking, respondent in the Court of Appeal. Dubé J.A., dissenting, would have dismissed the appeal on the ground that the investigation was an inadmissible interference in the management and operations of a federal "company".
V‑‑Constitutional Questions
58. The constitutional questions served upon the Attorney General of Canada and the Attorneys General of all provinces in the case at bar are as follows:
Whether ss. 33, 36, 37 and 40 to 45 of an Act respecting occupational health and safety (R.S.Q., c. S‑2.1) are constitutionally applicable to Bell Canada?
If so, whether these sections are inoperative in respect of Bell Canada as being incompatible or conflicting with federal legislation in the same area applicable to Bell Canada?
VI‑‑ Arguments Made by Appellants and Attorney General of Quebec
59. With some minor differences, these arguments are similar. They relate primarily to the characterization of the Act, and accordingly to its classification and application to a federal undertaking.
60. In appellants' submission, the pith and substance of the Act is not labour relations or working conditions. Its focus is not, like that of the Labour Code and the Act respecting labour standards, the establishment of a scheme of labour relations, the protection of industrial peace and the promotion of collective agreements, certification, the settlement of grievances, the setting of a minimum wage, holidays and leave. If I have correctly understood their position, appellants and the Attorney General do not even contend that the Act has both health and labour relations aspects, as the Quebec Court of Appeal held. In the submission of the appellants and the Attorney General of Quebec, the only true subject‑matter of the Act is the health and safety of persons in the province, and in particular of workers who need special protection where they are most at risk, in the workplace. They further argue that workers have a right to health and safety like anyone else and that these rights are fundamental rights protected by the Charter of human rights and freedoms, R.S.Q., c. C‑12. Furthermore, in the submission of appellants and the Quebec Attorney General, the Act, operating ante facto by means of prevention and inspection, is the complement of the Workmen's Compensation Act, which by means of compensation acts after an industrial accident or an occupational injury has occurred, but is also concerned with workers' health and safety.
61. Appellants and the Attorney General of Quebec also contend, and this is a question which pertains more particularly to the classification of the Act, that the Act does not essentially affect nor impair the operations and functioning of Bell Canada.
62. Appellants and the Attorney General of Quebec accordingly conclude, as regards classification of the Act, that the Act is applicable to Bell Canada as a federal undertaking without thereby becoming a statute relating to this federal undertaking.
63. Appellants and the Attorney General of Quebec contend, finally, that the Act is not inconsistent with any federal legislation.
64. Before proceeding to examine these arguments in detail, it should be noted that in the three cases in this trilogy all the parties asked the Court not to call into question the application of provincial workmen's compensation schemes to federal undertakings.
65. Further, in each of the three cases, members of the Court asked counsel whether their arguments implied a challenge to cases such as the Postal Service Case 1948, the Stevedoring Case and Bell Canada 1966. The answer was in the negative on the ground that from the standpoint of characterization, this trilogy should be distinguished from those cases. In my view, as we shall see below, the Court is being asked to make an impossible distinction and it must either follow those three cases or reverse them. I think there is good reason to follow them.
VII‑‑ Characterization of the Act respecting occupational health and safety
1. Content of the Act
66. Summarizing this highly complex statute, which contains over three hundred sections, is not an easy task and often requires citing at length its most important or characteristic provisions.
67. The Act, which was adopted in 1979 following the publication of a White Paper entitled Santé et sécurité au travail (Health and Security in the Workplace) by the Government of Quebec in 1978, has come into effect in stages: some of its provisions were still not in effect at the time of the events which gave rise to the case at bar and those which gave rise to Canadian National. However, these provisions are all in effect now except ss. 204 to 215, which apply only to construction sites; in both cases in the trilogy in which the Act is impugned, all the parties referred in their factums to the totality of the provisions in analysing and characterizing the Act, without distinguishing between those in effect and those not yet in effect but which would shortly come into effect. In my opinion the parties were right to proceed in this way, and I will follow their example, as otherwise it would be impossible to arrive at a characterization of the whole Act that would be accurate.
68. The Act contains seventeen chapters.
69. Chapter I contains only one section, the definition section, from which the following must be cited:
"certified association" means a certified association within the meaning of the Labour Code (R.S.Q., c. C‑27);
"employers' association" means a group organization of employers, an association of group organizations of employers or an association that includes employers and group organizations of employers, having as its objects the study, safeguarding and development of the economic interests of its members and particularly assistance in the negotiation and application of collective agreements;
...
"union association" means a group of workers constituted as a professional syndicate, union, brotherhood or otherwise or a group of such syndicates, unions, brotherhoods or other groups of workers otherwise constituted, having as its objects the study, safeguarding and development of the economic, social and educational interests of its members and particularly the negotiation and application of collective agreements;
...
"labour commissioner" means a labour commissioner within the meaning of the Labour Code;
"labour commissioner‑general" means the labour commissioner‑general within the meaning of the Labour Code;
...
"contaminant" means a solid, liquid or gaseous matter, a microorganism, a sound, a vibration, a radiation, heat or an odor, or any combination of these likely to alter in any way the health or safety of workers;
"agreement" means an individual work contract or a collective agreement within the meaning of paragraph d of section 1 of the Labour Code and paragraph g of section 1 of the Act respecting labour relations in the construction industry (R.S.Q., c. R‑20) or another agreement relating to working conditions, including a government regulation giving effect thereto;
...
"employer" means a person who, under a contract of lease of personal service or a contract of apprenticeship, even without renumeration, retains the services of a worker; an educational institution is deemed to be the employer of a student in cases where, under a regulation, the student is deemed to be a worker or a construction worker;
"establishment" means all the installations and equipment grouped on one site and organized under the authority of one person or of related persons in view of producing or distributing goods or services, except a construction site; this word includes, in particular, a school, a construction firm and the lodging, eating or recreational facilities put at the disposal of workers by the employer, excepting, however, private lodging facilities;
"inspector" or "regional chief inspector" means a person appointed under section 177;
"workplace" means any place in or at which a person is required to be present out of or in the course of work, including an establishment and a construction site;
...
"dangerous substance" means any substance which, by reason of its characteristics, constitutes a danger to the health, safety or physical well‑being of a worker;
...
"worker" means a person, including a student in the cases determined by regulation, who, under a contract of lease of personal service or a contract of apprenticeship, even without remuneration, carries out work for an employer, except
(1) a person employed as manager, superintendent, foreman or as the agent of the employer in his relations with his workers;
(2) a director or officer of a corporation, except where a person acts as such in relation to his employer after being designated by the workers or by a certified association;
"Court" means the Labour Court established pursuant to the Labour Code.
70. Chapter II is entitled "Scope". It will be necessary to cite s. 2, which describes the object of the Act and indicates one of its guiding principles:
2. The object of this act is the elimination, at the source, of dangers to the health, safety and physical well‑being of workers.
This act provides mechanisms for the participation of workers, workers' associations, employers and employers' associations in the realization of its object.
71. Section 3, in this chapter, completes the description of the object of the Act:
3. The fact that collective or individual means of protection or safety equipment are put at the disposal of workers where necessary to meet their special needs must in no way reduce the effort expended to eliminate, at the source, dangers to the health, safety and physical well‑being of workers.
72. In the same chapter, s. 4 provides that the Act is of public order and any derogating provision of any agreement or decree is null. It states that an agreement or decree may however include more favourable provisions for the health, safety and physical well‑being of the worker.
73. Chapter III is of central importance. It is entitled "Rights and Obligations" and divided into three divisions, the first entitled "The Worker", the second "The Employer" and the third "The Supplier".
74. The first division is divided into five parts, the first dealing with the worker's general rights, the second with the right of refusal, the third with protective re‑assignment, the fourth with re‑assignment of a pregnant worker and the fifth with the worker's obligations.
75. Part 1 contains s. 9, of great importance, dealing with certain of the worker's general rights:
9. Every worker has a right to working conditions that have proper regard for his health, safety and physical well‑being.
76. Section 10 also describes the worker's general rights:
10. In accordance with this act and the regulations, the worker is entitled, in particular,
(1) to training, information and counselling services in matters of occupational health and safety, especially in relation to his work and his work environment, and to receive appropriate instruction, training and supervision;
(2) to receive the preventive and curative health services relating to the risks to which he may be exposed, and his wages for the time spent in undergoing a medical examination during employment prescribed for the application of this act and the regulations.
77. The right of refusal is described in s. 12:
12. A worker has a right to refuse to perform particular work if he has reasonable grounds to believe that the performance of that work would expose him to danger to his health, safety or physical well‑being, or would expose another person to a similar danger.
78. Section 13 creates exceptions to the right of refusal, as for example if the refusal puts the life, health, safety or physical well‑being of another person in immediate danger or if the conditions under which the work is to be performed are ordinary conditions in this kind of work.
79. Section 14 provides that, with certain exceptions, and until an executory decision is rendered ordering a worker to resume work, an employer shall not have the work performed by another worker. Section 14 further provides that a worker exercising his or her right of refusal is deemed to be at work, which means inter alia that he or she is entitled to wages.
80. A worker who refuses to perform his or her work must inform his or her supervisor immediately: s. 15. The safety representative mentioned in ss. 87 and 88 is summoned to examine the matter and the corrective measures he or she intends to apply; if there is no safety representative or if he or she is not available, he or she is replaced by a representative of the worker's certified association, or if none is available by any other worker designated by the worker who refuses to perform his or her work: s. 16.
81. If disagreement persists, the worker may in due course require intervention by an inspector, by the safety representative or by the employer: s. 18.
82. The inspector's decision must be substantiated and recorded in writing: s. 19.
83. The inspector's decision is executory until revised by the regional chief inspector, at the request of the worker, the safety representative or the employer within the specified time limit; the regional chief inspector's decision is executory until revised by the Commission, at the request of the worker, the safety representative or the employer; a final decision applies as long as the circumstances remain unchanged: ss. 20 to 24.
84. An employer may require a worker exercising his or her right of refusal to remain at the workplace and assign the worker temporarily to other duties that he or she is reasonably capable of performing: s. 25.
85. Sections 26, 27 and 28 read as follows:
26. In cases where the exercise of the right to refuse to work prevents at least two other workers from working, the inspector must be present on the premises not later than six hours after his intervention has been required.
If the inspector is not present within the prescribed time, the employer may, notwithstanding section 14, have the work performed by another worker who agrees to do the work after being informed that the right of refusal has been exercised, and of the reasons therefor.
27. Where several workers refuse to perform particular work by reason of the same danger, their cases are examined jointly and may be the subject of a decision concerning them jointly.
28. Where the exercise of the right of refusal results in depriving of work other workers in the undertaking, these other workers are deemed to be at work for the duration of the work stoppage.
The employer may, however, assign the other workers to other duties that they are reasonably capable of performing or require that they remain available at the workplace during the whole period thus remunerated.
86. Section 30 protects a worker who is exercising his or her right of refusal against disciplinary measures, except within ten days of a final decision by the regional chief inspector or the Commission if the right has been abused.
87. Section 31 protects the safety representative in the same way.
88. A worker's right to protective re‑assignment is conferred by s. 32:
32. A worker who furnishes a certificate attesting that his being exposed to a contaminant entails danger to him, in view of the fact that his health shows signs of deterioration, may request to be re‑assigned to duties that do not entail exposure to a contaminant and that he is reasonably capable of performing, until the condition of his health allows him to resume his former duties and his working conditions conform to the standards established by regulation for that contaminant.
89. Sections 33, 36 and 37, mentioned in the first constitutional question, read as follows:
33. The certificate contemplated in section 32 may be issued by the physician in charge of health services in the establishment where the worker is employed, or another physician.
If the certificate is issued by the physician in charge he must, at the worker's request, notify the physician designated by the worker.
If the certificate is issued by another physician, he must, before issuing it, consult with the physician in charge or, if there is no physician in charge, with the head of the community health department of the territory in which the establishment is situated, or the physician designated by him.
36. A worker is entitled, for the first five working days of his work stoppage, to be remunerated at his regular wage rate. Thereafter, he is entitled, for the period of his work stoppage, to the indemnity provided in subparagraph b of subsection 1 of section 2 of the Act respecting indemnities for victims of asbestosis and silicosis in mines and quarries (R.S.Q., c. I‑7).
To decide a case under this section, the Commission shall apply, mutatis mutandis, subsections 2 and 3 of section 2, and sections 3, 4, 5, 6, 7, 10, 12, 13 and 14 of the act contemplated in the first paragraph, and the Workmen's Compensation Act to the extent that it is consistent with this act.
37. If a worker believes he is not reasonably capable of performing duties to which he is re‑assigned by the employer, he may request the health and safety committee or, failing such a committee, the safety representative and the employer to examine and decide the question in conjunction with the physician in charge of health services in the establishment, or if there is no physician in charge, the head of the community health department of the territory where the establishment is situated.
The worker or the employer may request the Commission to review the decision. If there is no safety committee or safety representative, the worker may send his request directly to the Commission. The Commission's decision is final and executory.
90. Under section 38, a worker reassigned to other duties retains all the benefits attached to his or her previous employment; at the end of the period of re‑assignment, he or she must be returned to his or her regular employment; finally, he or she continues to receive social benefits subject to payment of the assessments, part of which is assumed by the employer.
91. Section 39 allows a worker who has stopped working to retain all the benefits relating to his or her earlier employment for one year subject to certain conditions.
92. The provisions regarding re‑assignment of a pregnant worker mentioned in the first constitutional question are as follows:
40. A pregnant worker who furnishes to her employer a certificate attesting that her working conditions may be physically dangerous to her unborn child, or to herself by reason of her pregnancy, may request to be re‑assigned to other duties involving no such danger that she is reasonably capable of performing.
The form and tenor of the certificate are determined by regulation, and section 33 applies to its issuance.
41. If a requested re‑assignment is not made immediately, the pregnant worker may stop working until she is re‑assigned or until the date of delivery.
"Delivery" means the natural or the lawfully, medically induced end of a pregnancy by child‑birth, whether or not the child is viable.
42. Sections 36 and 37 apply, mutatis mutandis, where a pregnant worker exercises her rights under sections 40 and 41.
43. A worker who exercises her rights under sections 40 and 41 retains all the benefits attached to her regular employment before her re‑assignment to other duties or before her work stoppage.
At the end of the worker's period of re‑assignment or work stoppage, the employer must return her to her regular employment and grant her the benefits she would have been entitled to had she remained in her employment.
The worker continues to receive the social benefits recognized for her workplace subject to payment of the exigible assessments, part of which is assumed by the employer.
44. On receiving an application from a pregnant worker, the Commission may make temporary payments if it is of opinion that it will probably grant the indemnity.
If the Commission concludes that the application should not be granted, the amounts paid as temporary payments are not recoverable.
45. The funds required for payment of the indemnity are taken by the Commission out of the special fund established under subsection 2 of section 99 of the Workmen's Compensation Act.
93. Sections 46 to 48 give a breast‑feeding worker rights similar to those conferred by ss. 40 to 45, when her working conditions involve risks for the child she is breast‑feeding.
94. Part 5 of Division I of Chapter III imposes obligations on workers in s. 49:
49. A worker must
(1) become familiar with the prevention program applicable to him;
(2) take the necessary measures to ensure his health, safety or physical well‑being;
(3) see that he does not endanger the health, safety or physical well‑being of other persons at or near his workplace;
(4) undergo the medical examinations required by this act and the regulations;
(5) participate in the identification and elimination of risks of work accidents or occupational diseases at his workplace;
(6) cooperate with the health and safety committee and, where such is the case, with the job‑site committee and with any person responsible for the application of this act and the regulations.
95. Division II of Chapter III relates to the employer.
96. Section 50 sets out the employer's general rights:
50. Every employer is entitled, in particular, in accordance with this act and the regulations, to training, information and counselling services in matters of occupational health and safety.
97. Section 51 lists the employer's general obligations, including the following:
51. Every employer must take the necessary measures to protect the health and ensure the safety and physical well‑being of his worker. He must, in particular,
(1) see that the establishments under his authority are so equipped and laid out as to ensure the protection of the worker;
...
(3) ensure that the organization of the work and the working procedures and techniques do not adversely affect the safety or health of the worker;
(4) supervise the maintenance of the workplace, provide sanitary installations, drinking water, adequate lighting, ventilation and heating and see that meals are eaten in sanitary quarters at the workplace;
(5) use methods and techniques intended for the identification, control and elimination of risks to the safety or health of the worker;
...
(7) supply safety equipment and see that it is kept in good condition;
(8) see that no contaminant emitted or dangerous substance used adversely affects the health or safety of any person at a workplace;
(9) give the worker adequate information as to the risks connected with his work and provide him with the appropriate training, assistance or supervision to ensure that he possesses the skill and knowledge required to safely perform the work assigned to him;
...
(11) provide the worker, free of charge, with all the individual protective health and safety devices or equipment selected by the health and safety committee in accordance with paragraph 4 of section 78 or, as the case may be, the individual or common protective devices or equipment determined by regulation, and require that the worker use these devices and equipment in the course of work;
(12) allow workers to undergo the medical examinations during employment required under this act and the regulations;
(13) give, to the workers, the health and safety committee, the certified association, the head of the community health department and the Commission, the list of the dangerous substances used in the establishment and of the contaminants that may be emitted;
98. Section 53 provides:
53. No employer may have particular work performed
(1) by a worker who has not reached the age determined by regulation to perform such work;
(2) beyond the daily or weekly maximum number of hours fixed by regulation;
(3) by a person who has not undergone the medical examination or does not hold the health certificate prescribed by regulation to perform such work.
99. Section 54 prohibits an employer or owner, in the cases determined by regulation, from undertaking the construction of an establishment or altering installations or equipment unless he or she has previously sent the Commission the plans and specifications of an architect or engineer attesting to their conformity with the regulations.
100. Sections 58 to 61 require an employer whose establishment falls in a category identified by regulation to see that a prevention program is implemented for that establishment.
101. Under section 59, such a prevention program must contain the following:
59. ...
(1) programmes for the adaptation of the establishment to the standards prescribed by the regulations respecting the layout of workplaces, work organization, equipment, material, contaminants, dangerous substances, processes and collective safety measures and equipment;
(2) measures of supervision of the quality of the work environment and of preventive maintenance;
(3) the specific standards of sanitation and safety for the establishment . . . .
102. Under section 60, the C.S.S.T. may order that the content of a program be amended.
103. Section 62 is one of the sections mentioned in the constitutional questions submitted in Canadian National. It will be cited in the reasons in that case. It imposes on employers a duty to inform the regional chief inspector of major accidents within 24 hours. It also provides that the scene of an incident must remain unchanged until it has been investigated, except to prevent an aggravation of the situation or if the inspector authorizes a change.
104. Division III of Chapter III relates to suppliers, who are prohibited by s. 63 from manufacturing, supplying, selling, leasing, distributing or installing any product, process, equipment, material, contaminant or dangerous substance unless it is safe and in conformity with the standards prescribed by regulation.
105. The crucial Chapter IV is entitled "Health and Safety Committees". Under sections 68 and 69, these committees may be created in any establishment employing more than twenty workers, belonging to a category identified for that purpose by regulation, at the request of a certified association or by order of the C.S.S.T.
106. Parity is ensured in these health and safety committees by ss. 71 to 73: at least half their members represent workers and are designated by them or by the certified association where it represents all the workers of the establishment.
107. Among the committees' functions are the following, set out in s. 78:
78. ...
(1) to choose, in accordance with section 118, the physician in charge of health services in the establishment;
(2) to approve the health programme prepared by the physician in charge under section 112;
(3) to establish, within the prevention programme, training and information programmes in matters of occupational health and safety;
(4) to select the individual protective devices and equipment which, while complying with the regulations, are best adapted to the needs of the workers of the establishment;
...
(9) to receive copy [sic] of notices of accident and to inquire into incidents that have caused or could have caused a work accident or an occupational disease and to submit the appropriate recommendations to the employer and the Commission;
(10) to receive suggestions and complaints from the workers, the certified association and the employer relating to occupational health and safety, and to examine, record, and answer these suggestions and complaints;
(11) to receive and study the reports of inspections made in the establishment;
...
(13) to carry out any other task the employer and the workers or their certified association entrust to it under an agreement.
108. Members of the health and safety committees are protected against disciplinary measures by s. 81, unless they abuse their functions.
109. Chapter V of the Act is entitled "Safety Representative". This person‑‑there may be more than one‑‑is designated from among the workers of an establishment where there is a health and safety committee, in the same way as the workers on such a committee, that is, he or she is designated by the workers.
110. Section 90 defines the functions of a safety representative:
90. The functions of a safety representative are
(1) to inspect workplaces;
(2) to receive copies of accident notices and investigate incidents that have caused or could have caused an accident;
(3) to identify situations that may be a source of danger to workers;
(4) to make such recommendations to the health and safety committee as he deems appropriate or, if there is no such committee, to the workers or their certified association and the employer;
(5) to assist workers in the exercise of their rights under this act and the regulations;
(6) to accompany the inspector on visits of inspection;
(7) to intervene in the cases where a worker exercises his right of refusal;
(8) to submit complaints to the regional chief inspector;
(9) to participate in the identification and assessment of risks connected with certain jobs and with the kinds of work performed by the workers, and the identification of contaminants and dangerous substances connected with certain kinds of work for the purposes of section 52.
111. Under section 92 a safety representative may take time off work without loss of pay as necessary to perform certain of his or her duties, and he or she is also protected against disciplinary measures by s. 97, except in cases of abuse.
112. Chapter VI, which contains ss. 98 to 103, relates to sector‑based associations of employers or union associations to provide employers and workers in a sector with training, information, research and counselling services.
113. Chapter VII, which contains ss. 104 to 106, authorizes the C.S.S.T. to grant subsidies to union associations and employers' associations.
114. Chapter VIII is entitled "Occupational Health". It contains ss. 107 to 136, grouped in five divisions: the first is concerned with the health programs established by the C.S.S.T. and the standard contracts concluded between the C.S.S.T. and hospital centers. Division II of this chapter relates to specific health programs for an establishment set up by the physician in charge. Division III deals with the physician in charge of health services in an establishment. Division IV deals with the head of the community health department. Lastly, Division V of this chapter concerns the recognition of certain health services.
115. Chapter IX, which contains ss. 137 to 176, is concerned with the establishment and functions of the C.S.S.T., which under s. 328 replaces the Commission des accidents du travail du Québec. Section 160 gives the Commission or persons designated by it to conduct investigations the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions, R.S.Q., c. C‑37, except the power of imposing imprisonment. Section 161 is concerned with the immunity of the Commission, its members, its board of directors, its vice‑presidents and its officers.
116. Chapter X is entitled "Inspection". It includes the text of ss. 177 to 193, which with s. 62 are provisions mentioned in the constitutional questions submitted in Canadian National. Sections 177 to 193 read as follows:
177. For the purposes of the application of this act and the regulations, inspectors and regional chief inspectors shall be appointed and remunerated in accordance with the Civil Service Act.
178. Sections 160 and 161 apply to an inspector or regional chief inspector appointed under section 177.
179. An inspector, in the performance of his duties, may, at any reasonable hour of the day or night, enter a place where activities are carried on in the fields contemplated in this act and the regulations.
An inspector acting under this section has access to all the books, registers and records of any employer, principal contractor, supplier or other person carrying on an activity in the fields contemplated by this act and the regulations. A person having custody, possession or control of these books, registers or records shall give communication of them to the inspector and facilitate his examination of them.
An inspector shall, on demand, produce a certificate of his office.
If the investigation is to be made in a place wholly or partly used as a dwelling, the inspector must, to carry out his duties, have a search warrant issued under the Summary Convictions Act (R.S.Q., c. P‑15) or the written consent of the occupant.
180. The inspector may, in addition to his general powers,
(1) investigate any matter within his competence;
(2) require the employer or principal contractor, whichever is the case, to produce the plan of the installations and of the layout of the equipment;
(3) take, free of charge, samples of any kind, particularly of objects used by the workers, for analysis; he must then inform the employer and, if possible, return the samples to him after analysis;
(4) conduct tests and make photographs or recordings at a workplace;
(5) in order to ensure that a building, a structure or civil engineering works are stable, require the employer, principal contractor or owner to produce an attestation of solidity signed by an engineer or architect, or an attestation contemplated in section 54;
(6) in such cases as he may determine, instal a measuring device at a workplace, or cause it to be worn by a worker with the worker's written consent, or order the employer to instal it or cause it to be worn at the time and place the inspector indicates, and require the employer to transmit the data on the terms and conditions the inspector determines;
(7) be accompanied by one or more persons of his choice while performing his duties.
181. On arriving at a workplace, and before making an investigation or inspection, an inspector shall take reasonable steps to advise the employer, the certified association and the prevention officer. On a construction site, he shall advise the principal contractor and the safety representative.
182. If he considers it advisable, an inspector may issue a remedial order requiring a person to comply with this act or the regulations, and fix the time in which he must comply.
183. The inspector shall communicate the findings of his investigation or inspection to the employer, the certified association, the job‑site committee, the health and safety committee, the safety representative and the head of the community health department; he shall send them a copy of any remedial order. If there is no committee, the employer shall post up copies of the remedial order in a sufficient number of conspicuous places easily accessible to the workers to ensure that they are informed.
184. A person to whom an inspector has given a remedial order shall carry it out in the appointed time, and inform the certified association, the health and safety committee, the safety representative and the inspector, as soon as possible, of the specific measures he intends to take.
185. No person may hinder an inspector in the performance of his duties, mislead or attempt to mislead him by concealment or false or untruthful statements, refuse to give his surname, given names and address to the inspector or neglect to obey an order he may give under this act or the regulations.
186. An inspector may order the suspension of work or the complete or partial shut‑down of a workplace and, if necessary, affix seals, if he considers a worker's health, safety or physical well‑being to be endangered.
The inspector shall substantiate his decision in writing as soon as possible and indicate the steps to be taken to eliminate the danger.
Section 183 applies, mutatis mutandis, to the inspector's order.
187. During a suspension of work or a shut‑down, the workers are deemed to be at work and therefore entitled to the wages and social benefits related to their work.
188. No person may be admitted to a workplace shut down by an inspector except, with his authorization, to do the necessary work to eliminate the danger.
However, the application of the first paragraph cannot prevent an employer, principal contractor or owner from taking such conservation measures as are necessary to avoid the destruction or serious deterioration of the moveable or immoveable property in the workplace.
189. Work shall not be resumed nor the workplace reopened until authorized by the inspector.
Section 183 applies, mutatis mutandis, to the inspector's authorization.
190. Where a person contravenes this act or the regulations, an inspector may order him to cease making, supplying, selling, leasing, distributing or installing the product, process, equipment, material, contaminant or dangerous substance concerned, and affix seals or confiscate such objects and order the person to cease every activity that might cause the emission of the contaminant concerned.
The inspector shall substantiate his decision in writing, indicating, where that is the case, the steps to be taken to bring the product, process, equipment, material, contaminant or dangerous substance, or the activity that might cause the emission of the contaminant, into conformity with the act and the regulations.
The person is prohibited from again making, supplying, selling, leasing, distributing or installing the product, process, equipment, material, contaminant or dangerous substance, or resuming the activity that might cause the emission of a contaminant, until authorized by the inspector.
Section 183 applies, mutatis mutandis, to the inspector's order or authorization.
191. An inspector's order or decision is executory until reviewed by the regional chief inspector.
192. A regional chief inspector's order or decision is executory until reviewed by the Commission.
The Commission's decision is final and without appeal.
193. The inspectors, regional chief inspectors and personnel required for the application of this chapter and of Division V of Chapter XI are responsible to such member of the Executive Council or such body as the Government may designate.
117. Chapter XI relates to construction sites. It contains ss. 194 to 222.
118. Chapter XII, which contains ss. 223 to 226, is entitled "Regulations" and gives the C.S.S.T. very wide powers to make regulations. Section 223 reads in part as follows:
223. The Commission may make regulations
(1) establishing categories of establishments, according to the activities carried on, the number of employees or the frequency and seriousness of accidents and occupational diseases;
...
(3) listing contaminants or dangerous substances, classifying them, identifying the biological or chemical agents and determining for each class or each contaminant a maximum permissible quantity or concentration of emission, deposit, issuance or discharge at a workplace, prohibiting or restricting the use of a contaminant or prohibiting any emission, deposit, issuance or discharge of a contaminant;
...
(6) identifying the contaminants in respect of which a worker may exercise his rights under section 32, determining the criteria of deterioration of health associated with each contaminant warranting the exercise of that right, specifying the conditions of the protective re‑assignment of a worker and his return to his duties, and determining the form and tenor of the certificate contemplated in sections 32, 40 and 46;
(7) prescribing measures for the supervision of the quality of the work environment and standards applicable to every establishment or construction site in view of ensuring the health, safety and physical well‑being of workers, particularly with regard to work organization, lighting, heating, sanitary installations, quality of food, noise, ventilation, variations in temperature, quality of air, access to the establishment, means of transportation used by workers, eating rooms and cleanliness of a workplace, and determining the hygienic and safety standards to be complied with by the employer where he makes premises available to workers for lodging, meal service or leasure [sic] activities;
...
(9) determining, by category of establishments or construction sites, the individual and common protective devices and equipment that the employer must put at the disposal of the workers, free of charge;
...
(11) fixing the minimum age at which a worker may carry out particular work it specifies;
(12) fixing, in such cases or circumstances as it may indicate, the maximum daily or weekly number of hours that may be devoted to particular work, according to the nature of the work, the place where it is carried out and the physical capacity of the worker, and prescribing the distribution of these hours and a minimum rest period or meal period;
...
(14) indicating the cases or circumstances in which new construction or alterations to existing installations must not be undertaken without prior transmission to the Commission of the architect's or engineer's plans and specifications, and indicating the time, terms and conditions of their transmission; prescribing standards of construction, development, maintenance and demolition;
...
(16) determining the cases and circumstances where an establishment or construction site must be considered remote, and the living conditions to be maintained there by the employer for the benefit of the workers;
(17) determining the categories of establishments for which a prevention program must be implemented, the minimum compulsory content of a prevention programme for each category of establishments or construction sites, and the time, terms and conditions of transmission of a prevention programme and its updating to the Commission;
...
(19) prescribing standards respecting the safety of such products, processes, equipment, materials, contaminants or dangerous substances as it specifies, indicating the directions for their use, maintenance and repair, and prohibiting or restricting their use;
...
(24) determining, by category of establishments, the amount of time that a safety representative may devote to his functions, determining, by category of establishments or construction sites, the instruments or apparatus a safety representative needs to exercise his functions and determining the registration, travel and accommodation expenses borne by it under sections 91 and 211;
...
(42) generally prescribing any other measure to facilitate the application of this act.
The content of the regulations may vary according to the categories of persons, workers, employers, workplaces, establishments or construction sites to which they apply. The regulations may also provide times within which they are to be applied, and these times may vary according to the object and scope of each regulation.
119. Chapter XIII includes ss. 227 to 233. It deals with the recourses of a worker who has been illegally penalized for exercising a right conferred by the Act. He or she may proceed by a complaint to the labour commissioner‑general or personally or through his or her certified association, have recourse to the grievance settlement procedure and arbitration.
120. Chapter XIV includes ss. 234 to 246. It deals with offences against the Act and penalties.
121. Chapter XV, on financing, includes ss. 247 to 250. Section 247 provides that the C.S.S.T. will collect from employers the sums required to defray all the costs arising from application of the Act and regulations. However, certain expenses relating to inspection are granted annually by the Legislature, which may also annually pay part of the amounts required to give effect to the Act and regulations in relation to education, information and research: ss. 249 and 250.
122. Chapter XVI is entitled "Transitional Provisions". It contains ss. 251 to 335.
123. Chapter XVII is entitled "Final Provisions". It contains ss. 336 to 338.
124. Before leaving this matter and passing on to the analysis and characterization of the Act, it should be noted that Parliament acted before the Quebec Legislature in adopting legislation on occupational health and security in federal undertakings. These provisions are contained in Part IV of the Canada Labour Code, R.S.C. 1970, c. L‑1, as amended, containing ss. 79 to 106.1 and adopted between 1967 and 1978. The Act contains striking analogies with this part of the Canada Labour Code, on which the White Paper recognizes at pp. 61, 62 and 279 that it was partly based, as well as on American and British legislation and the legislation of other provinces.
125. There is no need to analyse the federal legislation in detail, but certain similarities with the Act should be noted. In section 81 it imposes on every person operating or carrying on a federal undertaking a duty to do so in a manner that will not endanger the safety or health of any person employed thereupon or in connection therewith, and to adopt procedures and techniques designed or intended to prevent or reduce the risk of employment injury. It imposes on a worker a duty to take necessary precautions to ensure his or her own safety and the safety of his or her fellow employees and to use such devices and wear such articles of clothing or equipment as are intended for his or her protection, which are furnished by the employer or which he or she is required by law to wear. Although the federal act does not contain specific provisions on the protective re‑assignment of pregnant women or other workers, it gives a worker in s. 82.1 the right to refuse to work in cases of imminent danger. This right is regulated. Where a refusal continues after an investigation a safety officer appointed by the Minister may, if a danger exists, give directions which are similar to a remedial order. The safety officer can do likewise if he or she discovers a danger in the course of an inspection. The inspector's directions may be referred to the Canada Labour Relations Board on appeal. In section 84.1, the federal act empowers the Minister to require the creation of safety and health committees at least half of the members of which shall be persons employed in the undertaking, who do not exercise managerial functions and who have been selected by other workers or by the union. The functions of safety and health committees are similar to those of the health and safety committees established under the Act. Finally, in s. 84 the federal act delegates to the Governor in Council extensive regulatory powers over the health and safety of persons employed upon or in connection with a federal undertaking that are comparable to those of the C.S.S.T. Inter alia, regulations may be made:
84. (1) ...
(a) respecting the structural design and the maintenance of any building or other structure;
(b) respecting the use, operation and maintenance of
(i) boilers and pressure vessels,
(ii) escalators, elevators and other devices for moving passengers or freight,
(iii) equipment for the generation, distribution or use of electricity, and
(iv) gas or oil burning equipment or other heat generating equipment;
(c) respecting the ventilation, lighting and temperature of places of employment and prescribing the minimum amount of space for employees;
...
(e) respecting the guarding and fencing of machinery, equipment and places;
(f) respecting the handling, transportation, storage, use and disposal of substances or devices dangerous to the safety or health of employees;
(g) prescribing the standards for protective clothing and equipment to be used by employees and the use of, and the responsibility for providing, such clothing and equipment;
(h) prescribing the age, the health and physical requirements and the qualifications of persons who may be employed in particular occupations;
...
(j) prescribing mechanical standards for vehicles and equipment;
...
(l) respecting the reporting and investigation of accidents and dangerous occurrences;
...
(n) respecting the adoption and implementation of appropriate safety codes;
(o) prescribing first‑aid facilities and the provision of first‑aid training and the services of first‑aid attendants . . . .
126. The Act and Part IV of the Canada Labour Code are thus similar in letter and spirit. Additionally, the federal act has been substantially revised and made more specific by S.C. 1984, c. 39, and it appears that these amendments are in turn based at least in part on the Act and probably on other provincial legislation. Thus, the new s. 79.1, which only describes or codifies earlier law, resembles s. 2 of the Act. It provides:
79.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.
127. We may also note the new s. 97(2), providing authority for agreements respecting the use of provincial employees as safety officers for the purposes of the federal act.
128. Differences certainly exist between the two statutes but, both in letter and spirit, they have much more in common than separating them.
2. Analysis and Characterization of the Act
129. None of the counsel disputed, and I do not think anyone could dispute, that the aim sought by the legislator in the Act is, as indicated in s. 2, "the elimination, at the source, of dangers to the health, safety and physical well‑being of workers". In constitutional terms, however, the ultimate purpose of legislation, in this case the health and safety of the worker, does not suffice to justify the specific means used to attain that purpose. To take an obvious and perhaps simplistic example, a province could not constitutionally, for a health and safety purpose, impose an import tax on products or equipment it thought to be dangerous. Clearly, the constitutionality of the Act is not in question here. The only question is as to its application to federal undertakings. However, in entering the field of prevention of accidents in the workplace, as the legislator has the power to do, and in using, as probably could not be avoided in prevention matters, means such as the right of refusal, protective re‑assignment, detailed regulations, inspection and remedial orders to "establishments" within the meaning of the Act‑‑that is, "all the installations and equipment grouped on one site and organized under the authority of one person or of related persons in view of producing or distributing goods or services . . . ."‑‑the legislator could not fail to enter directly and massively into the field of working conditions and labour relations on the one hand and, on the other‑‑though these are two elements of the same reality‑‑into the field of the management and operation of undertakings. In so doing, the legislator precluded itself from aiming at and regulating federal undertakings by the Act.
130. I think it is clear that on its face the Act principally treats working conditions, labour relations and the management of an undertaking.
131. Working Conditions
132. No statutory definition exists of the phrase "working conditions". The legislator sometimes uses the phrase with different meanings. Over the years the courts and academic commentators have proposed many and varied definitions, derived from many legislative contexts, none of which do I find necessary nor advisable to adopt. I think it is sufficient for the purposes of this trilogy to define working conditions very generally: working conditions are conditions under which a worker or workers, individually or collectively, provide their services, in accordance with the rights and obligations included in the contract of employment by the consent of the parties or by operation of law, and under which the employer receives those services. Legislation adds minimal statutory conditions to negotiated agreements, as is the case for example with the minimum wage, days off and working hours. The public order status of the Act means that its provisions are incorporated into any contract of employment concluded between an employer and a worker. That these provisions are in the nature of working conditions appears most clearly when one considers that it is possible to increase the minimal protection provided by the legislator through union or individual negotiation (s. 4(2) of the Act). Additionally, there is nothing to prevent the conditions of the Act being incorporated in collective agreements so that they might be subject to the grievance settlement procedure in addition to the remedies provided by the Act.
133. Unlike a workmen's compensation scheme, such as that in question in the Workmen's Compensation Board case, the preventive provisions dealing with occupational health and safety fall within the scope of the contract of employment. The essence of legislation the purpose of which is to safeguard the health of workers is that it articulates the terms of the contract of employment, in the same way as does a collective agreement which contains preventive clauses dealing with occupational health and safety. In the case at bar, for example, there is a collective agreement between Bell Canada and the mis en cause union containing a clause on the protective re‑assignment of pregnant women, less favourable than that contained in the Act and accordingly void if the Act is applicable but, if the Act is not applicable, the mis en cause worker may take advantage of that clause. Similarly, in Alltrans the collective agreement in effect between the parties imposed on the employer an obligation to defray the cost of safety boots incurred by its employees.
134. It is in the sense defined above that I believe the term "working conditions" in s. 9 of the Act, which gives a worker his or her chief "general right", must be understood. Section 9 states:
9. Every worker has a right to working conditions that have proper regard for his health, safety and physical well‑being. [Emphasis added.]
However, the legislator uses the phrase in a different sense in s. 40 of the Act in relation to the re‑assignment of pregnant women. Here the phrase "working conditions [which] may be physically dangerous" actually refers to "work environment". Nevertheless what in ss. 40 and 41 in fact is a working condition in the sense of the definition given above is the right itself of the pregnant worker to a new assignment or to re‑assignment accompanied by the advantages and benefits attached thereto by the Act.
135. Analysis of the Act, and in particular ss. 2 to 57, indicates that in order to carry out its purpose, the Act regulates the respective rights and obligations of workers and employers under the contract of employment.
136. Section 2, which in its first paragraph states that the purpose of the Act is preventive, namely "the elimination, at the source, of dangers to the health, safety and physical well‑being of workers", may in a sense be regarded as stating a negative purpose. This entails, for example, the prevention of job‑related accidents. But the positive side of this purpose and the means of attaining it are designed to ensure that workers have working conditions that will not impair their health, safety and physical well‑being. That is, stated as a single proposition, the philosophy underlying the entire Act.
137. I have already referred to s. 4, which allows the parties to provide by agreement for more advantageous conditions than those in the Act and which does not prohibit incorporating the provisions of the Act in collective agreements to be included among those terms of the agreement subject to the grievance settlement procedure.
138. I have cited s. 9, which deals expressly with working conditions.
139. Sections 12 to 31, on the right of refusal, allow workers, subject to the conditions stated therein, to refuse to execute their primary obligation, to provide their services, the Act thereby intervening at the heart of the contract of employment between the worker and the employer.
140. Given that, under s. 14 of the Act, workers are deemed to be at work when they exercise the right of refusal, they are entitled to their wages, as are the other workers put out of work by that refusal: s. 28. It is true they must always remain available and may be assigned temporarily to other duties. However, such a temporary assignment, which I note in passing affects the right of management, is no more than a different form of service. As for the wages, they are, from the standpoint of the employer, the essential counterpart of the services.
141. Sections 32 to 48, on the protective re‑assignment of workers exposed to a contaminant which entails danger to them and the re‑assignment of pregnant workers and breast‑feeding workers, give those affected the right to request assignment to other duties, which is of the very essence of the contract of employment and is clearly a working condition. They also confer the right to refuse to provide services until the assignment has been given or the danger has ceased, or until the pregnancy or breast‑feeding is at an end.
142. In the case of a protective re‑assignment or protective re‑assignment of a pregnant woman, the workers are still entitled under ss. 36 and 42 to five days' wages although they have ceased to work. They are also entitled to benefits amounting to about 90 percent of their wages. These benefits are paid to them by the C.S.S.T. from funds contributed by employers. They also retain the benefits connected with the employment‑‑ss. 39 and 43‑‑and are entitled to be eventually returned to their regular jobs: ss. 38 and 43.
143. Whatever definition is accepted of "working conditions", it seems inconceivable to me that it should not include a worker's obligation to provide his or her services and the employer's obligation to pay his or her wages. Specifically, the rights of refusal, protective re‑assignment and re‑assignment of pregnant women, cardinal rights conferred on the worker by the Act, authorize workers to withhold their services.
144. If the right to refuse to work, the continuation of the right to wages and other benefits, availability, assignment to other duties and the right to return to the employment at the end of the assignment or cessation of work are not working conditions, I do not know what is. The fact that the purpose of these rights is to protect workers' health and safety does not change the nature of these conditions.
145. It may be noted that the right of refusal is not, except in particular details, an innovation of the Act. It had already been recognized by arbitrators and the courts: "Difficultés d'application de la Loi sur la santé et la sécurité du travail", by Daniel Rochefort, in Les aspects juridiques de la santé et de la sécurité au travail (1982), Formation permanente du Barreau du Québec, cours 64, at pp. 30‑32.
146. Sections 49 and 51, on the obligations of workers and the obligations of the employer, contain a number of provisions commonly found in collective agreements, where they are also regarded as working conditions.
147. Monet J.A. in the Court of Appeal, as well as appellants and the Attorney General of Quebec, concluded that the Act does not relate to working conditions in the traditional sense, or at least not working conditions within the meaning of the Labour Code or the Act respecting labour standards ("A.L.S."), which, I note in passing, replaced the old Minimum Wage Act, R.S.Q. 1977, c. S‑1. In their view only the conditions regulated by these two Acts are true working conditions. Yet this is an argument which works against their position.
148. Section 40 of the Act is not the only provision which sets forth the right of a pregnant woman to re‑assignment. The A.L.S. provides for a similar right:
122. ...
An employer must of his own initiative transfer a pregnant employee if her conditions of employment are physically dangerous to her or her unborn child. The employee may refuse the transfer by presenting a medical certificate attesting that her conditions of employment are not dangerous as alleged.
149. The connection between "condition of employment" and the right to re‑assignment is plain. Section 94 of the A.L.S. states:
94. Notwithstanding section 93, an agreement or a decree may grant an employee a more advantageous condition of employment than required in a standard prescribed by this act or the regulations. [Emphasis added.]
150. The presence of the right of protective re‑assignment in the A.L.S. and in the Act is significant in many respects. Counsel for the C.S.S.T. argued that the "health" purpose distinguishes the Act from the A.L.S. and the Labour Code. A close reading of the A.L.S. indicates that many of the standards it contains are designed to protect the health of workers. This is true of provisions prescribing the maximum number of working hours, a minimum weekly rest period, the right to maternity leave and so on:
52. For the purposes of computing overtime, the regular workweek is forty‑four hours except in the cases where it is fixed by regulation of the Government.
78. Subject to the application of paragraph 12 of section 39 or of section 53, an employee is entitled to a weekly minimum rest period of twenty‑four consecutive hours.
79. Unless otherwise provided in a collective agreement or a decree, the employer must grant to an employee a rest period of thirty minutes, without pay, for meals, for a period of five consecutive hours of work.
89. The Government, by regulation, may fix labour standards respecting the following matters:
...
(6) the right to a maternity leave and, as the case may be, the indemnity attached to such leave, the terms and conditions of application, the duration and distribution of such leave and, generally, the rights and benefits granted to a pregnant employee where she is or is deemed to be at work;
...
(8) tools, showers, cloakrooms and rest areas. [Emphasis added.]
151. Sections 15 to 35 of the Regulation respecting labour standards, R.R.Q., 1981, c. N‑1.1, r. 3, adopted pursuant to s. 89(6) of the A.L.S., provide that the length of maternity leave may vary in accordance with the risk of miscarriage or danger to the health of the mother or unborn child. The return to work is also dependent on the mother's health.
152. No valid distinction can be made on these points between the A.L.S. and the Act. These two statutes prescribe standards of safety which are all concerned with the worker's well‑being. In the context of international law, the academic author Éric David notes the interrelationship of these standards:
[TRANSLATION] The right to health is also the right of an individual not to have his or her health threatened by the exploitation of his or her services. In fact, an individual's health is threatened when he or she is required to work for starvation wages whatever the conditions. Accordingly, any standard intended to protect workers against the excesses of such exploitation is part of the right to health even though it may be of a social rather than "medical" nature. This is true of standards prohibiting forced labour, the employment of children under an age fixed by law and of young people in work likely to adversely affect their health; the same is also true of standards which recognize the "right to a fair and adequate wage", the right to social security, "the right to rest and recreation...and a reasonable limitation on the length of work and periodic leave", and so on.
(Éric David, "Le droit à la santé comme droit de la personne humaine" (1985), 2 R.Q.D.I. 63, at pp. 73‑74.)
153. The A.L.S. and the Act have other similar provisions. In addition to the right to re‑assignment of a pregnant worker common to both statutes, the Act, like the A.L.S., prohibits an employer from having work performed by a worker beyond the daily or weekly maximum number of hours fixed by regulation or by a worker who has not attained the prescribed minimum age (ss. 53(2), 223(11) and (12) of the Act). Though the purpose of such a measure is to ensure the health and safety of workers, this Court has held on several occasions that legislation on working hours is within the exclusive jurisdiction of the federal Parliament in that it deals with "working conditions" (Postal Service Case 1948; Bell Canada 1966). No valid distinction can be made between the minimum age required to work, the daily or weekly maximum number of hours of work and the right to protective re‑assignment, especially as these standards are all contained in the Act, "the object of [which] is the elimination, at the source, of dangers to the health, safety and physical well‑being of workers" (s. 2).
154. In all these cases, the purpose of the legislation‑‑the worker's health and safety‑‑cannot be distinguished from the means, working conditions, by which the purpose is achieved. It is also significant that it is the Minister of Labour who is responsible for administering the Act, as opposed to the Minister of Health and Social Services, who is responsible for "the application of the Acts and regulations respecting health and social services" (see s. 336 of the Act, s. 1 of the Act respecting the Ministère de la Santé et des Services sociaux, R.S.Q., c. M‑19.2, Decree 1237‑81, May 1, 1981, (1981) 113 G.O. II 2155, and Decree 2646‑85, December 13, 1985, (1986) 118 G.O. II 169).
155. Counsel for the C.S.S.T. further argued that the worker's rights to health and safety are fundamental rights rather than working conditions. To begin with, it should be noted that the scope of s. 46 of the Quebec Charter of human rights and freedoms, which provides that "Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well‑being" (emphasis added), is still subject, as the Quebec legislator himself has noted, to the constitutional division of powers:
55. The Charter affects those matters that come under the legislative authority of Québec.
156. The principle according to which a province, just like Parliament for that matter, cannot legislate in relation to fundamental rights except in fields falling within its legislative jurisdiction has also been confirmed in decisions of this Court. In Scowby v. Glendinning, [1986] 2 S.C.R. 226, the majority of the Court stated the following at p. 233:
"Human rights" without more is itself not such a free‑standing program in the sense that not all such rights, and not all means by which such rights may be protected, fall in pith and substance within one of the heads of power in s. 92. Rather, provincial legislation protecting aspects of human rights may find constitutional validity only to the extent that it is, outside of its association with human dignity or liberty, independently valid under s. 92. [Emphasis added.]
157. What is perhaps the best argument against the submission of counsel for the C.S.S.T. on this point comes from the very wording of the international documents which are the basis of contemporary legislation on occupational health and safety. The Preamble to the Constitution of the International Labour Organisation, 15 U.N.T.S. 40, and Article 7 of the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 4, make it clear that the health of workers is part of their working conditions:
PREAMBLE
Whereas universal and lasting peace can be established only if it is based upon social justice;
And whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, by the regulation of the hours of work, including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of equal remuneration for work of equal value, recognition of the principle of freedom of association, the organisation of vocational and technical education and other measures;
Whereas also the failure of any nation to adopt human conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries;
The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, and with a view to attaining the objectives set forth in this Preamble, agree to the following Constitution of the International Labour Organisation: [Emphasis added.]
(Preamble of I.L.O. Constitution.)
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) remuneration which provides all workers, as a minimum, with:
(i) fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) a decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) safe and healthy working conditions;
(c) equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays. [Emphasis added.]
(Article 7 of the International Covenant on Economic, Social and Cultural Rights.)
158. I am therefore of the view that this argument based on fundamental rights must fail. It is worthy of mention that many courts of appeal across the country have decided that provisions of provincial human rights charters which prohibit discrimination in labour relations do not apply to federal undertakings (Re Forest Industries Flying Tankers Ltd. and Kellough (1980), 108 D.L.R. (3d) 686 (B.C.C.A.); Re Canadian Pacific Ltd. and Attorney‑General of Alberta (1980), 108 D.L.R. (3d) 738 (Alta. C.A.) and Canadian Human Rights Commission v. Haynes (1983), 46 N.R. 381 (F.C.A.))
159. Labour Relations
160. The right of refusal, protective re‑assignment and the re‑assignment of pregnant women and breast‑feeding workers are specific rights of workers corresponding to correlative obligations of employers regarding remedial action, assignment, payment of wages and other benefits. I have tried to show that these rights and obligations are working conditions. However, because of this correlation, they also represent labour relations between workers and employers. The same observation is true of the general rights and obligations of workers under the Act.
161. The general rights conferred on the worker are rights which he or she may assert chiefly against the employer. This can readily be seen when one considers the general obligations of the employer, set out in s. 51. I will return to this below.
162. In addition, the worker's obligations, set out in s. 49, are obligations which are undoubtedly in part imposed on him or her in respect of his or her fellow‑workers, but chiefly in respect of the employer. For example, the obligation to take measures to protect his or her health, safety or physical well‑being is not legally an obligation the worker owes to himself or herself, but primarily an obligation owed to the employer, who cannot protect the employee's health and safety without his or her co‑operation. If a worker withholds this, he or she may be liable to disciplinary measures which may result in a dispute and arbitration: this is a typical problem of labour relations.
163. I now return to the general obligations imposed on the employer by s. 51. They can to some extent be regarded as obligations owed to the state, especially as in addition they are also, like the Act as a whole, accompanied by penal sanctions contained in Chapter XIV, but the Act imposes these general obligations specifically for the benefit of the worker who is named expressly in most of the paragraphs of this section.
164. There is accordingly a general correlation between the rights and obligations of the worker and the employer, which leads me to the conclusion that these provisions deal with labour relations.
165. I therefore do not think that the Act is intended to protect the health and safety of people in the province in general. It governs relations between worker and employer as such, in the workplace or in the course of employment, subject to a contract of employment which may add to the minimum requirements of the Act, and relates to a key field of labour relations, that of the worker's health and safety.
166. This "labour relations" aspect is illustrated by the statutory definition of a worker in s. 1: the exceptions contained in this definition are taken from the Labour Code and their consequence is that the supervisory or managerial personnel of an undertaking do not benefit from the protection of the Act except, under s. 11, the right to protective re‑assignment and the right to re‑assignment of a pregnant woman. This is a typical hierarchical distinction of labour relations.
167. Moreover, most of the expressions defined in s. 1 are specific to the field of labour relations and several of them to the labour relations falling within the exclusive legislative jurisdiction of the Quebec Legislature, as opposed to the labour relations of federal undertakings. This is true of the following expressions:
"certified association" means a certified association within the meaning of the Labour Code (R.S.Q. c. C‑27);
"employers' association" means a group organization of employers ...having as its objects...assistance in the negotiation and application of collective agreements;
"union association" means a group of workers...having as its objects...the negotiation and application of collective agreements;
"labour commissioner" means a labour commissioner within the meaning of the Labour Code;
"labour commissioner‑general" means the labour commissioner‑general within the meaning of the Labour Code;
"agreement" means...a collective agreement within the meaning of paragraph d of section 1 of the Labour Code...or another agreement relating to working conditions . . . ;
"employer";
"establishment";
"workplace";
"worker".
168. Some of these expressions even seem to be squarely in conflict with the application of the Act to federal undertakings. Thus, the "certified association" mentioned in provisions such as ss. 69, 72 and 90 of the Act is a certified association within the meaning of the Labour Code. Such associations do not exist in federal undertakings, where unions are certified by the Canada Labour Relations Board.
169. In my opinion, the first fifty‑seven sections of the Act manifestly deal with working conditions and labour relations. The same is largely true either directly or incidentally of a number of subsequent provisions, such as those contained in Chapter X, entitled "Inspection", and Chapter XII, entitled "Regulations". However, I will consider these provisions mainly from the point of view of the effect of the Act on the management and operation of the undertaking, which are also directly affected by the provisions in the first three chapters.
170. Management of Undertaking
171. The Act aims at and regulates the management and operations of an undertaking under its jurisdiction in two ways. The first is partial but important nevertheless. It results from the fact that the Act creates a system of partial co‑management of the undertaking by the workers and the employer. The second way is much more comprehensive. It results from the fact that, while the health and safety of workers are the objectives of the Act, it is addressed primarily to the manager of an undertaking as such to attain these objectives, for the simple reason that it is the manager who has ownership and control of the undertaking, of "establishments", facilities, equipment, workplaces, the organization of work and the methods used to carry it out, techniques and rates of production, products used, procedures, materials, the construction of an establishment, the modification of facilities and so on.
172. After describing the essentially preventive purpose of the Act in the first paragraph of s. 2, the legislator in the second paragraph sets out the Act's second major principle:
This act provides mechanisms for the participation of workers, workers' associations, employers and employers' associations in the realization of its object.
173. In this latter provision the legislator is laying down a rule of at least partial co‑management of the undertaking, co‑management which moreover is intended to be established on a parity basis.
174. This rule is given effect chiefly in Chapters IV and V relating to health and safety committees and the safety representative.
175. The health and safety committees are established on a parity basis. At least half their members represent workers and are designated by them. They enjoy significant decision‑making powers, including that of selecting the physician responsible for health services in the establishment, approving the health program prepared by this physician, establishing training and information programs in matters of occupational health and safety and selecting individual protective devices and equipment. They also have investigative powers traditionally regarded as part of the powers of management.
176. The Act further provides, in Chapter V, for the designation of a safety representative in establishments where a health and safety committee exists, and he or she is ex officio a member of such a committee. The representative is chosen from among the workers of the establishment in the same way as workers' representatives on the health and safety committee. The representative also has managerial functions: he or she inspects workplaces, receives copies of accident notices and investigates the cause of accidents, identifies dangerous situations, accompanies an inspector on visits of inspection and intervenes in cases where a worker exercises his or her right of refusal. The representative may take time off work without loss of pay to perform part of his or her functions. The health and safety committee determines the time he or she may spend on his or her other functions, in accordance with the regulations. It may be assumed that in large undertakings the representative will be required to spend most of his or her time on duties which may well mean that he or she must always be present, unless assisted by other safety representatives.
177. Commenting on these provisions in Droit de la santé et de la sécurité du travail: la loi et la jurisprudence commentées (1986), the authors Denis Bradet, Bernard Cliche, Martin Racine and France Thibault make the following observation at p. 7:
[TRANSLATION] ...active participation by all parties involved, recognized by the adoption of the parity rule, infringes upon part of the traditional management rights heretofore enjoyed by employers.
178. As these authors point out, the preceding provisions only divest the employer of a part of the exclusive rights of management, though by no means a negligible part.
179. However, for the reasons I mentioned above, the Act is addressed primarily to the manager of the undertaking as such, and it is the very management and managerial authority in its entirety which the Act regulates, and which it must of necessity regulate if it is to attain its objective. To see this one need only consider the general duties imposed on the employer by s. 51, the obligations imposed on employers of establishments identified by regulation by s. 59, and some of the very wide regulatory powers of the C.S.S.T.
180. Under section 51, the employer must inter alia see that the establishments under his or her authority are so equipped and laid out as to ensure the protection of the worker. He or she must ensure that the organization of the work and the working procedures and techniques are safe. He or she must supervise maintenance of the workplace.The employer must use methods and techniques intended for the identification, control and elimination of risks. He or she must supply safety equipment and see that it is kept in good condition. He or she must provide the worker free of charge with all the individual protective health and safety devices or equipment selected by the health and safety committee.
181. The employer of an establishment to which s. 58 applies must see that a prevention program for each establishment is implemented, taking into account the responsibilities of the health and safety committee. Under section 59, such a program must contain, in addition to any component prescribed by regulation, components such as the following: programs for adapting the establishment to the standards prescribed by regulations respecting the layout of workplaces, work organization, equipment, material, processes and collective safety measures and equipment. Under section 60, the C.S.S.T. may order the content of a program to be amended.
182. If one examines the regulatory powers conferred on the C.S.S.T. by s. 223 of the Act, one finds that they include the following: for contaminants‑‑see the definition in s. 1‑‑prohibiting or restricting their use or prohibiting any emission, deposit, issuance or discharge of a contaminant; prescribing measures for supervision of the quality of the work environment and standards applicable to every establishment, in order to ensure the health, safety and physical well‑being of workers, particularly with regard to work organization; determining the individual and common protective devices and equipment that the employer must put at the disposal of workers free of charge; determining the maximum daily or weekly number of hours that may be devoted to particular work and prescribing the distribution of those hours; indicating the cases or circumstances in which new construction or alterations to existing installations must not be undertaken without prior transmission to the Commission of plans and specifications and prescribing standards of construction, development, maintenance and demolition; determining the cases and circumstances in which an establishment must be regarded as remote and determining the living conditions to be maintained there by the employer for the benefit of the workers; prescribing standards respecting the safety of products, processes, equipment and materials; indicating directions for their use, maintenance and repair and prohibiting or restricting their use.
183. In view of such a large number of express provisions, one cannot help being struck by the fact that the legislator intended to enact rules regulating the very management and operations of all undertakings it sought to make subject to the Act, and appears to have been primarily motivated by a desire not to leave any aspect of the management and operation out.
184. Furthermore, the White Paper makes no secret of this intention, which it expressly confirms at p. 201, inter alia:
[TRANSLATION] As the government's objective is to protect the health and safety of workers, it is understandable that the definition of workers' rights is regarded as of great importance. It is also understandable that employers appear more bound by obligations than profiting from rights. Their obligations in the occupational health and safety field result from the rights they possess initially over the organization and layout of the workplace as owners and managers of their undertakings. [Emphasis added.]
185. In the same vein, in a report prepared for the Ontario Ministry of Labour, G. G. McKenzie and J. I. Laskin observe:
The main objective of the workplace is to be productive, but not at the expense of injury to workers or their exposure to hazards that may affect their health. The majority of employers and workers know this to be so and view occupational health and safety as an integral component of the operations of the workplace. [Emphasis added.]
(Ontario, Ministry of Labour, Report on the Administration of the Occupational Health and Safety Act (1987), vol. 1, at p. 17.)
186. I accordingly conclude that the Act is aimed at and regulates the management and operations of the undertakings subject to its jurisdiction.
187. Moreover, there is serious reason to doubt that the Quebec legislator thought the Act would apply to federal undertakings or intended that it should. At page 260 of the White Paper, there is in fact the following passage under the subtitle [TRANSLATION] "Scope":
[TRANSLATION] ...except for federal organisms, over which the Quebec government has no jurisdiction, the preventive scheme will create rights and obligations for workers as well as for private or public undertakings, whether owned in Quebec or abroad, that operate anywhere in Quebec. [Emphasis added.]
188. This apparent intention to exclude federal organisms from the scope of the Act is confirmed by the definitions in s. 1 of the Act, discussed above. The limited scope of the Act which results from these definitions is consistent with the presumption that the legislator did not intend to give a statute unconstitutional effect by regulating the management of federal undertakings.
VIII‑‑ Classification of the Act respecting occupational health and safety
1. Application of Principles Developed by the Courts
189. Once the constitutional characterization of the subject‑matter of a statute has been determined, a court must in order to decide as to its validity or application determine into which of the classes of subject listed in ss. 91 and 92 of the Constitution Act, 1867 a statute relating to such subject‑matter will fall. This second stage is that of the constitutional classification to which the double aspect theory as well as the concept of impairment are connected and which I consider below.
190. The classification stage is simplified when, as is the case here, the question has been canvassed over a period of about forty years in several leading cases which have determined its parameters and solutions.
191. As we saw under the previous heading, the Act is not related to the subject‑matter of health. It accordingly does not fall into the class of subjects mentioned in subs. 16 of s. 92 of the Constitution Act, 1867: "Generally all Matters of a merely local or private Nature in the Province". Proposition one stated at the start of these reasons is thus inapplicable. Even if the conclusion were otherwise, it must be noted that the various arguments made by the parties in support of the application of provincial legislation appear to ignore the presumption created by s. 91 in fine, under which ``. . . any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces". I have already shown that a statute relating to occupational health and safety necessarily regulates the management of the undertaking in which the workers are employed. Accordingly, the effect of applying the Act to a federal undertaking would be to allow a province to regulate the management of such an undertaking, a matter which is within exclusive federal jurisdiction. Under the presumption in s. 91 in fine, occupational health and safety in a federal undertaking would fall within the class of subjects listed in s. 91(29) and would therefore not be deemed to fall within the class of subjects of a local or private nature mentioned in s. 92(16).
192. I will now consider propositions two and three.
193. The Act deals with the following matters: working conditions, labour relations and the management of undertakings. Under proposition two, these subjects in principle fall into the class of subject mentioned in s. 92(13) of the Constitution Act, 1867: "Property and Civil Rights in the Province". The Act is therefore intra vires, valid and applicable to undertakings which it may constitutionally cover.
194. However, consistent with proposition three and by exception to proposition two, the Act characterized as above cannot be applied to the federal undertakings mentioned in s. 91(29) and s. 92(10)a., b. and c. of the Constitution Act, 1867, without regulating essential parts of those undertakings and without making the Act, as a consequence of such an application, a statute dealing with matters that fall within the classes of subjects mentioned in those subsections. The Act is therefore not applicable to undertakings such as Bell Canada and Canadian National.
195. However, it will be necessary to look further at proposition three and the cases on which it is based.
196. In the Postal Service Case 1948, the Court had to decide whether the minimum wage statute of Saskatchewan was applicable to one Fleming, a temporary employee of a post office operated by a Mrs. Graham, whose remuneration consisted of being paid commissions based on a percentage of the post office revenue. As she was authorized to do, Mrs. Graham herself paid Fleming's salary from the revenue she collected. It had earlier been decided by this Court in Reference re Legislative Jurisdiction over Hours of Labour, [1925] S.C.R. 505, at p. 510, that:
...as a rule a province has no authority to regulate the hours of employment of the servants of the Dominion Government.
However, Fleming's status as an employee of the Government of Canada or of the Crown was to say the least uncertain. The six judges of the Court in the Postal Service Case 1948 held unanimously that the Saskatchewan minimum wage statute was not applicable to Fleming and Mrs. Graham, but they did so for different reasons. Three of them, Rand, Kellock and Locke JJ., held that the provincial statute was not applicable because Fleming was a servant or employee of the Crown and his wages were earned in the Crown's service. The other three judges, Rinfret C.J., Taschereau J., as he then was, and Estey J., held that the provincial statute was not applicable to Fleming because he was part of the postal service, which is subject to the exclusive legislative jurisdiction of Parliament under s. 91(5) of the Constitution Act, 1867, "Postal Service", which precludes any encroachment by provincial legislation on matters falling within this class of subject.
197. As we shall see, the opinion of the last three judges, which eventually prevailed, is particularly important.
198. Rinfret C.J. said at p. 253:
It is not necessary to decide whether Fleming became an employee of His Majesty, or whether there existed between him and His Majesty the relationship of master and servant. Under the statutory provisions quoted above Fleming in the course of his duties as assistant to Mrs. Graham became a person employed in the business of the Post Office of Canada and part of the Postal Service. As such, he was subject to the exclusive control of the Federal Parliament.
By Section 91, sub‑sec. 5 of the British North America Act, the exclusive legislative jurisdiction with reference to "Postal Service" is conferred on Parliament. No question of ancillary or incidental legislation arises here, and it is not necessary for the Court to inquire whether the field is or is not already occupied by the Dominion. Postal Service is exclusively within the jurisdiction of the Parliament of Canada and any encroachment on the subject by provincial legislation must be looked upon as being ultra vires, whether Parliament has or has not dealt with the subject by legislation.
199. Taschereau J. held at p. 257 that Fleming was part of the postal service. He then continued, a little further on:
It follows that the fixing of the wages of the Postal employees, is a matter in pith and substance "Postal Service Legislation", upon which the provinces may not legislate without invading a field "exclusively" assigned to the Dominion. (Reference as to Hours of Labour in Industrial Undertakings, [1925] S.C.R. 505.)
It has been suggested that in the absence of a law passed by the Dominion of Canada, in relation to the Postal Service which is inconsistent with the provinces of the said Minimum Wage Act, the Act applies to employees and employers in the circumstances of this case. It is further submitted that there is no Dominion legislation fixing the minimum wage to be paid to employees in the position of the said Leo Fleming.
I am of the opinion that this argument cannot prevail. We have not to deal with the theory of the "occupied field". We are confronted with a question of "competence" to legislate in matters "falling strictly within any of the classes specially enumerated in section 91 of the B.N.A. Act". Here, this "competence" does not exist.
200. Even Rand J. wrote at p. 263:
I take this legislation to aim at the regulation of the business, occupation or employment in which the work of the employee for which the minimum wage is prescribed is carried out, and which, as well as the employer, is for such purposes within the legislative control of the province. In the case before us, the postmistress has neither business nor service of her own into which the employee is or can be introduced; and the actual employment to which the employee is committed is beyond provincial jurisdiction. The condition for the application of the statute is, therefore, absent. [Emphasis added.]
201. Finally, Estey J. wrote at p. 269:
Counsel for the Dominion does not question the competency of the province under the B.N.A. Act, s. 92(13) (Property and Civil Rights) to enact this Minimum Wage Act, but does contend that it is not applicable to, or that the Postal Service is not subject to, the provisions of this provincial legislation.
Section 91 (5) of the B.N.A. Act provides:
91. . . . it is hereby declared that...the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,‑‑
(5) Postal Service.
This section 91 (5) vests in the Parliament of Canada the exclusive power to legislate with respect to the Postal Service. As stated by Lord Maugham in Attorney‑General for Alberta v. Attorney‑General for Canada, [1943] A.C. 356 at 370:
In such a case it is immaterial whether the Dominion has or has not dealt with the subject by legislation, or to use other well‑known words, whether that legislative field has or has not been occupied by the legislation of the Dominion Parliament.
See also Attorney‑General for Canada v. Attorney‑General for Ontario, [1898] A.C. 700 at 715; Madden v. Nelson, [1899] A.C. 626; Reference re Waters and Water‑Powers, [1929] S.C.R. 200 at 213.
If, therefore, the said employment of Fleming was within the "Postal Service" as that term is used in the B.N.A. Act, his employment was subject to Dominion legislation only.
202. These opinions were conclusive for the purposes of Bell Canada 1966 as they are for the purposes of the case at bar. The power to make laws regarding matters falling within the class of subject of the postal service mentioned in s. 91 of the Constitution Act, 1867 is no more or less exclusive than the power to make laws regarding matters falling within the class of subject of federal undertakings covered by ss. 91(29) and 92(10)a., b. and c., quite apart from the question of whether Parliament has exercised its primary powers. If this exclusivity suffices to remove the postal service from the scope of an Act like the Saskatchewan minimum wage statute, it also suffices, and in the same way, to remove federal undertakings from the scope of a statute of the same type, as was held in Bell Canada 1966 and as the Court must now find.
203. It should at once be noted that Rinfret C.J.'s opinion in the Postal Service Case 1948 finally received the support of the seven members of this Court sitting in Bell Canada 1966, then of all the members of the Court in Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178, in which Ritchie J. wrote at p. 181:
It has been accepted, at least since the case of Toronto Electric Commissioners v. Snider et al., [1925] A.C. 396, that, generally speaking, legislation respecting employer and employee relationships relates to property and civil rights and is therefore within the exclusive jurisdiction of the provincial legislature, but under the Industrial Relations and Disputes Investigation Act, 1948 (Can.), c. 54, which was the precursor of the present Canada Labour Code, and the decision of this Court in the Reference relating to the validity and application of that statute, it has been established that it is not within the competency of a provincial legislature to legislate concerning industrial relations of persons employed in a work, business or undertaking coming within the exclusive jurisdiction of the Parliament of Canada. There can be no doubt that the subject‑matter of the postal service is expressly assigned to the exclusive legislative authority of Parliament under s. 91(5) of the British North America Act, and that employer and employee relations in that service are correspondingly within that authority. If authority were needed for this latter proposition, it is to be found in Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248, particularly per Rinfret C.J., at p. 253.
204. The Stevedoring Case differs from the Postal Service Case 1948, Bell Canada 1966 and the three cases of the instant trilogy chiefly in that it was concerned not with whether federal undertakings or institutions come within provincial statutes of general application, but with the constitutional validity of federal legislation, namely Part I of The Industrial Relations and Disputes Investigation Act, S.C. 1948, c. 54, the precursor of the present Canada Labour Code, as Ritchie J. observed in the foregoing citation. It was also concerned with the application of that statute to the employees of a stevedoring business.
205. It will be recalled that before the Stevedoring Case the Judicial Committee of the Privy Council had, in Snider, quashed a federal statute, An Act to aid in the Prevention and Settlement of Strikes and Lockouts in Mines and Industries connected with Public Utilities (the "Industrial Disputes Investigation Act, 1907"), S.C. 1907, c. 20. As its full and short titles indicate, the purpose of this statute was to aid in the prevention and settlement of industrial disputes. These disputes could concern matters such as wages, remuneration, working hours, conditions of employment, the employment of children and so on. The statute in question had a very wide ambit, extending to mining operations employing ten or more persons and the operation of public services, a great many of which were under provincial jurisdiction. Under this statute strikes and lockouts could be prohibited in such undertakings, after inquiry and mediation. The Judicial Committee found this statute to be ultra vires because it dealt with property and civil rights in the provinces.
206. The legislation which was the subject of the Stevedoring Case is in many respects similar to that overturned in Snider, with in addition provisions on unfair competition in labour relations matters and on certification. This statute, like the other, dealt with labour relations, the negotiation of collective agreements and working conditions, mediation and the legality of strikes and lockouts, but the law was considerably restricted in its application by s. 53, which provided that Part I of the statute "appl[ies] in respect of employees who are employed upon or in connection with the operation of any work, undertaking or business that is within the legislative authority of the Parliament of Canada including, but not so as to restrict the generality of the foregoing", works, undertakings or businesses in connection with navigation, railways, canals, telegraphs, lines of steam connecting a province with any other or extending beyond the limits of a province, aerodromes, lines of air transportation, radio broadcasting stations, works and undertakings declared to be for the general advantage of Canada, and so on.
207. Nine judges of the Court unanimously found Part 1 of The Industrial Relations and Disputes Investigation Act to be valid. Six of them also were of the opinion that the legislation was within the exclusive legislative jurisdiction of Parliament. They were Kerwin C.J. and Taschereau, Estey, Cartwright, Fauteux and Abbott JJ. Rand, Kellock and Locke JJ. did not think it necessary to decide this point. Rand J. dissented, and Locke J. dissented in part on the application of the legislation to the stevedoring undertaking. Each of the nine judges wrote an opinion. I think that extracts from several of these need to be cited.
208. At pages 541 and 542, Taschereau J. wrote:
Generally, I think that the Industrial Relations and Disputes Investigation Act may be justified by head 10 of s. 91 of the British North America Act, which gives to the Parliament of Canada exclusive jurisdiction on Navigation and Shipping. Regulation of employment of stevedores is, I believe, an essential part of navigation and shipping and is essentially connected with the carrying on of the transportation by ship. Even if incidentally the law may affect provincial rights, it is nevertheless valid if it is, as I think, in relation to a subject within the federal legislative power under s. 91.
...
In the Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248, it was held by this Court that the wages of an employee of a Postal Service of Canada were within the exclusive legislative field of the Parliament of Canada, and that any encroachment by provincial legislation on that subject must be looked upon as being ultra vires whether or not Parliament has or has not dealt with the subject by legislation.
This last case is very similar to the one at bar, and I have no doubt that, if it is not competent to a provincial legislature to legislate as to hours of labour and wages of Dominion servants, it is not within its power to legislate as to industrial disputes of employees on a subject matter coming within the jurisdiction of the Parliament of Canada under s. 91.
209. Rand J. refrained from deciding whether the legislation fell within the exclusive powers of Parliament, but in my opinion he came very close to recognizing this at least partly in the following passages found at pp. 546 and 547:
But works and undertakings within 91(29) present features of overriding importance. For example, three systems of railways extend from the Atlantic to the Pacific; for them Canada is a single area in which provincial lines are for most purposes obliterated: on them, hours of labour, qualification and classification of employees, working conditions, wages, and other items of like nature, with uniformity, in general, unavoidable, are so bound up with management and operation that a piecemeal provincial regulation would be intolerable.
...
As to them, and subject to what is said hereafter as to incidental matters, the provisions of the Act before us are, in my opinion, within the competency of Parliament. It was argued by Mr. Varcoe that the relations dealt with are so far implicated in management as to be exclusively within that jurisdiction; but it is unnecessary to say more than that provincial legislation, in relation to them, is inoperable.
210. Although the legislation at issue in the Stevedoring Case did not mention banks as the Canada Labour Code now does, Rand J. wrote at p. 554:
Banking, the incorporation of banks and the issue of paper money come under s. 91(15). It would be incompatible with that power with its national interest and responsibility that the qualifications, classifications, hours of labour, wages and salaries of employees, related as they are to the earning charges of interest, etc., or the procedure to obtain agreement on them, should not lie within the regulation of Parliament.
211. Kellock J. wrote at pp. 556‑57:
In Winner's case the Judicial Committee considered that a line of buses operating between points in the United States and Canada was analogous to a line of steamships providing similar communication. In their Lordships' view, as expressed by Lord Porter at p. 572, "As in ships so in buses it is enough that there is a connecting undertaking."
In my opinion the legislative jurisdiction vested in Parliament to make laws in relation to works and undertakings of the character excepted by s. 92(10) from the legislative jurisdiction of the provinces, involves jurisdiction to legislate with respect to the persons engaged in the operation of such undertakings and the manner in which and the conditions under which such operations are carried out. This view is in accord with the judgment of this court in The Hours of Labour Reference, [1925] S.C.R. 505, and I consider the legislation here under consideration belongs in the same category as that which was there in question.
...
If the matters dealt with by the legislation in question on this Reference can therefore be said to fall within the scope of management of the undertakings excepted by s. 92(10), there would be no room for provincial legislation on the same subject matter with relation to such an undertaking whether the field had or had not been occupied. [Emphasis added.]
212. Estey J. wrote at p. 564:
If, therefore, a system of collective bargaining and statutory provisions for settlement of disputes in labour relations are to be made available to employers and employees within the legislative jurisdiction of Parliament, that body alone can enact the appropriate legislation.
213. Cartwright J., as he then was, wrote at p. 583:
Having concluded that the proper construction of s. 53 is as set out above, it follows that the whole of Part I of the Act is intra vires. Its application is limited to matters in the exclusive jurisdiction of Parliament and consequently it is without significance that it interferes with matters such as contractual relationships between employees and employers in the province, which would otherwise fall within the jurisdiction of the provincial legislatures.
214. Fauteux J., as he then was, wrote at pp. 585 and 587‑88:
...the Act aims mainly at the maintenance or securement of peaceful labour relations between employers and employees, the promotion of conditions favourable to settlement of labour disputes or, more precisely, at peaceful labour operations within this limited field of works, undertakings and businesses as to which the regulation by law is, under the B.N.A. Act, committed to the legislative authority of Parliament.
...
...the Act thus construed is, as submitted on behalf of the Attorney‑General of Canada particularly, legislation truly in relation to classes of subjects within the legislative competence of Parliament.
215. Finally, Abbott J. wrote at p. 592:
The right to strike and the right to bargain collectively are now generally recognized, and the determination of such matters as hours of work, rates of wages, working conditions and the like, is in my opinion a vital part of the management and operation of any commercial or industrial undertaking. This being so, the power to regulate such matters, in the case of undertakings which fall within the legislative authority of Parliament lies with Parliament and not with the Provincial Legislatures. [Emphasis added.]
216. This last passage has been cited so often that it has become practically a classic statement on point. This Court adopted it as a principal basis for its unanimous judgment in Bell Canada 1966, at p. 772. It again cited the passage and reaffirmed it in its unanimous judgment in Agence Maritime Inc. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 851, at pp. 859‑60. Finally, it was cited yet again in its unanimous judgment in Attorney General of Canada v. St. Hubert Base Teachers' Association, [1983] 1 S.C.R. 498, at pp. 506‑7.
217. Though the Stevedoring Case concerns the validity of federal legislation relating to industrial relations rather than the application of a provincial statute to federal undertakings, its significance here is its at least partial reliance on earlier sources such as the Postal Service Case 1948, and in particular the insistence by the majority of judges on emphasizing, even in obiter, the exclusive, and consequently primary and not ancillary, nature of the federal jurisdiction in the area. Finally, there is the vigour and lasting quality of some of the reasons in this decision, especially those of Abbott J., which have been used as a basis for several subsequent decisions, including Bell Canada 1966.
218. In the Postal Service Case 1948 and the Stevedoring Case, the Court had already indicated the outline of an answer to this crucial question: does Parliament's power to legislate on working conditions and labour relations in federal undertakings and on the management of those undertakings derive from its primary, elementary or unassailable jurisdiction over them?‑‑or on the contrary does it derive from the power which is incidental and ancillary to its primary jurisdiction, and which it is recognized as having by Lord Tomlin's third proposition in Attorney‑General for Canada v. Attorney‑General for British Columbia, [1930] A.C. 111, at p. 118:
(3.) It is within the competence of the Dominion Parliament to provide for matters which, though otherwise within the legislative competence of the provincial legislature, are necessarily incidental to effective legislation by the Parliament of the Dominion upon a subject of legislation expressly enumerated in s. 91.
219. The answer to this crucial question dictates the answer to the question of whether provincial statutes apply to federal undertakings in the area of working conditions and labour relations and the management of undertakings. Such provincial legislation is inapplicable to federal undertakings when it has the effect of regulating matters which fall within the primary jurisdiction of Parliament.
220. The question was to be finally resolved by Bell Canada 1966.
221. This was an action brought in the Superior Court by which the Quebec Minimum Wage Commission claimed some $50,000 from Bell Canada as a levy for 1959 under regulations adopted pursuant to the Minimum Wage Act, R.S.Q. 1941, c. 164, s. 8e.:
8. The Commission may make regulations:
...
e. To levy on upon the professional employers contemplated by an ordinance a sum not exceeding one per cent of the wages paid to their employees;
222. The Minimum Wage Commission had also, before adopting the foregoing regulations, enacted an ordinance determining minimum wage rates, working hours, overtime pay and holidays with pay. This ordinance applied to all employees governed by the Act, with certain exceptions that did not include Bell Canada employees. The ordinance was adopted pursuant to s. 13 of the Act:
13. The Commission may, by ordinance, determine, for stated periods of time and for designated territories, the rate of minimum wage payable to any category of employees indicated by it, the terms of payment, working hours, conditions of apprenticeship, the proportion between the number of skilled workmen and that of apprentices in any stated undertaking, the classification of the operations and the other working conditions deemed in conformity with the spirit of the act.
223. Bell Canada admitted that the Minimum Wage Act was constitutionally valid but argued that the Act was not applicable to it.
224. The action was allowed in the Superior Court but unanimously dismissed by five judges of the Court of Queen's Bench: Bell Telephone Co. of Canada v. Minimum Wage Commission, [1966] Q.B. 301. However, the reasons given by the Court of Queen's Bench judges differed. The majority, consisting of Tremblay C.J., Rinfret J.A., as he then was, and Owen J.A., upheld Bell Canada's position on the ground that the fixing of a minimum wage to be paid by this federal undertaking is a matter within the exclusive legislative authority of Parliament and it was not necessary to consider whether there was a conflict between the federal and provincial legislation.
225. Hyde and Taschereau JJ.A. would also have dismissed the action but for reasons which the headnote writer summarized as follows at p. 301:
The subject matter of the Quebec Minimum Wage Act is one which comes directly within the legislative power of the Provincial Legislature and the jurisdiction of the Parliament of Canada in the same general field must be considered as incidental or ancillary to the latter's powers in respect of its exclusive jurisdiction over works and undertakings of the nature carried on by the said company. The Minimum Wage Act deals not only with minimum wages but also with other matters forming a substantial area of conflict with the Industrial Relations and Disputes Investigation Act, a federal statute within the ancillary and incidental powers of the Parliament of Canada, and does not properly contemplate the said company.
226. The opinions of both the majority and Hyde and Taschereau JJ.A. include a detailed review of earlier decisions.
227. In Bell Canada 1966 this Court agreed with the judges of the majority on the Court of Queen's Bench. Martland J. wrote the unanimous judgment for a bench of seven judges.
228. At pages 769 and 770, Martland J. cited ss. 8e. and 13 of the Minimum Wage Act and stressed the fact that the Commission had in fact adopted pursuant to s. 13 an ordinance which it said was applicable to Bell Canada and which provided inter alia for minimum wage rates, hours of work, payment of overtime and holidays with pay.
229. At page 771 Martland J. wrote:
The appellant's submission is that the legislation in question did apply to the respondent until the federal parliament occupied the field and that this was not done until the enactment, on March 18, 1965, of the Canada Labour Standards Code, Statutes of Canada 1964‑65, c. 38.
230. On the same page Martland J. cited the relevant provisions of the Constitution Act, 1867:
91. ...it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,‑‑
...
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming with the Classes of Subjects next hereinafter enumerated; that is to say,‑‑
...
10. Local Works and Undertakings other than such as are of the following Classes:‑‑
a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
b. Lines of Steam Ships between the Province and any British or Foreign Country:
c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
231. Martland J. went on at pp. 771‑72:
I have quoted these well known provisions of the Act in full because I think it is of assistance to refer back to their actual wording in defining the issue in the present case. The Minimum Wage Act is a statute which, inter alia, purports to regulate to an extent the wages to be paid by the respondent to its employees. If the regulation of the wages paid to its employees by an undertaking within the excepted classes in s. 92(10) is a "matter" coming within those classes of subject, then, by virtue of s. 91(29), it is within the exclusive legislative authority of the Canadian Parliament.
The question is, therefore, as to what "matters" are within the classes of legislative subjects defined in that paragraph. Clearly they extend beyond the mere physical structure of, e.g., a railway or a telegraph system. The words "works" and "undertakings" are to be read disjunctively (Attorney‑General for Ontario v. Winner, [1954] A.C. 541) and the word "undertaking" has been defined in re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304 at 315.
...
In my opinion all matters which are a vital part of the operation of an interprovincial undertaking as a going concern are matters which are subject to the exclusive legislative control of the federal parliament within s. 91(29). It was not disputed in argument that the regulation of the rates to be paid by the respondent's customers is a matter for federal legislation. In the Winner case, supra, the regulation of those places at which passengers of an interprovincial bus line might be picked up or to which they might be carried was held not to be subject to provincial control. Similarly, I feel that the regulation and control of the scale of wages to be paid by an interprovincial undertaking, such as that of the respondent, is a matter for exclusive federal control.
I would adopt the statement of Abbott J. in this Court, in the Reference as to the Validity of the Industrial Relations and Disputes Investigation Act:
The right to strike and the right to bargain collectively are now generally recognized, and the determination of such matters as hours of work, rates of wages, working conditions and the like, is in my opinion a vital part of the management and operation of any commercial or any industrial undertaking. This being so, the power to regulate such matters, in the case of undertakings which fall within the legislative authority of Parliament lies with Parliament and not with the Provincial Legislatures. [Emphasis added.]
232. Martland J. then expressed the view that the foregoing conclusions of Abbott J. did not run counter to decided authorities.
233. He referred first to Workmen's Compensation Board and to the workmen's compensation legislation therein held applicable to federal undertakings, and noted that no mention was made of s. 92(10) of the Constitution Act, 1867, and no attempt made to define the scope of the exclusive legislative jurisdiction conferred on Parliament by that provision. Martland J. distinguished this decision from that which he had to render on grounds which I will consider below in examining the double aspect theory.
234. At pages 774‑75, Martland J. cited a passage from Duff J. in Reference re Legislative Jurisdiction over Hours of Labour, supra:
It is now settled that the Dominion, in virtue of its authority in respect of works and undertakings falling within its jurisdiction, by force of section 91, no. 29, and sec. 92, no. 10, has certain powers of regulation touching the employment of persons engaged on such works or undertakings. The effect of such legislation by the Dominion to execution of this power is that provincial authority in relation to the subject matter of such legislation is superseded, and remains inoperative so long as the Dominion legislation continues in force.
235. Martland J. commented on this quotation and this case as follows:
This case lends some support to the argument that the federal power to legislate on the matter of hours of work in relation to undertakings subject to federal legislation under s. 92(10) is an ancillary rather than an exclusive power, but the issue did not have to be determined in that case.
As is pointed out in the Court below by Rinfret J., the judgment of this Court, delivered by Duff J. in the Reference re Waters and Water‑Powers, [1929] S.C.R. 200, contains, at p. 214, a reference to the fact that:
"railway legislation, strictly so called" (in respect of such railways), is within the exclusive competence of the Dominion, and such legislation may include, inter alia, regulations for the construction, the repair and the alteration of the railway and for its management.
He referred to the case of Canadian Pacific Railway v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367 at 372.
Again, at p. 226, he says:
As to the first branch, it seems unnecessary to say that a province would be exceeding its powers if it attempted to intervene in matters committed exclusively to Dominion control, by attempting, for example, to interfere with the structure or management of a work withdrawn entirely from provincial jurisdiction, such as a work authorized by the Dominion by legislation in execution of its powers under s. 92(10a).
236. At pages 775‑76, Martland J. continued:
There are two cases in this Court which, in my opinion, bear a closer relationship to the circumstances of the present case than either of the two authorities which I have just considered. The first of these is the Reference re the Minimum Wage Act of the Province of Saskatchewan.
237. Martland J. summarized the facts and opinions of the judges in the Postal Service Case 1948 and approved the part of the headnote summarizing the opinion of Rinfret C.J., Taschereau and Estey JJ. in that case:
In my view, the conclusion in this case is properly stated in the headnote, as follows:
The employee became employed in the business of the Post Office of Canada and therefore part of the Postal Service. His wages were, as such, within the exclusive legislative field of the Parliament of Canada and any encroachment by provincial legislation on that subject, must be looked upon as being ultra vires, whether or not Parliament has or has not dealt with the subject of legislation.
238. At page 777, Martland J. commented on the resemblance between the Postal Service Case 1948 and Bell Canada 1966:
I see no difference in principle between the position of an employee hired and paid, not by the Crown, but by an individual, but who was engaged in the Postal Service, s. 91(5), and an employee of an interprovincial undertaking, s. 91(29) and s. 92(10), in relation to the exclusive power of the federal parliament to legislate regarding his wage rate.
239. Then, just before reaching his conclusions, Martland J. cited the Stevedoring Case with approval:
The other decision is in respect of the Reference as to the Validity of the Industrial Relations and Disputes Investigation Act, to which I have already made some reference. This Court had to consider the validity of federal legislation in the field of labour relations applicable to businesses within the legislative authority of the Parliament of Canada. The Act was held to be within the federal power, and the decision, in my view, did recognize that that field constituted an essential part of the operation of such an undertaking.
With respect, I subscribe to this view. In my opinion, regulation of the field of employer and employee relationships in an undertaking such as that of the respondent's, as in the case of the regulation of the rates which they charge to their customers, is a "matter" coming within the class of subject defined in s. 92(10)(a) and, that being so, is within the exclusive legislative jurisdiction of the Parliament of Canada. Consequently, any provincial legislation in that field, while valid in respect of employers not within exclusive federal legislative jurisdiction, cannot apply to employers who are within that exclusive control.
240. I think it is quite impossible to distinguish the circumstances of the case at bar from those of Bell Canada 1966. The working conditions and labour relations as well as the management of federal undertakings such as Bell Canada, are matters falling within the classes of subject mentioned in s. 91(29) of the Constitution Act, 1867, and consequently fall within the exclusive legislative jurisdiction of the Parliament of Canada.
241. Moreover, as I indicated at the start of these reasons, the exclusivity rule approved by Bell Canada 1966 does not apply only to labour relations or to federal undertakings. It is one facet of a more general rule against making works, things or persons under the special and exclusive jurisdiction of Parliament subject to provincial legislation, when such application would bear on the specifically federal nature of the jurisdiction to which such works, things or persons are subject.
242. This rule dates back to Bonsecours, in which the Judicial Committee of the Privy Council held that municipal legislation and regulations regarding ditches applied to a ditch alongside a federal railway when those rules are limited to the maintenance of the ditches and clearance of obstacles which might obstruct them, but would not apply if they specified what the structural form of the ditches should be, such as their width or depth.
243. In Bonsecours there is also the following oft‑cited passage at p. 372:
Accordingly, the Parliament of Canada has, in the opinion of their Lordships, exclusive right to prescribe regulations, for the construction, repair and alteration of the railway, and for its management . . . . [Emphasis added.]
244. An analogous distinction was again made some twelve years ago in Natural Parents. One of the questions presented in that case was whether the British Columbia Adoption Act, a law of general application, had been incorporated by reference in the Indian Act, under s. 88 of the latter Act. Laskin C.J., writing for himself and for Judson and Spence JJ. and Dickson J., as he then was, answered this question in the affirmative on the ground that s. 88 covered only provincial statutes of general application which cannot apply to Indians without affecting them in their "Indianness". Laskin C.J. wrote at pp. 759‑61:
There was no challenge in this Court to the general and long‑established proposition found in Union Colliery Co. of British Columbia Ltd. v. Bryden, [1899] A.C. 580, at p. 588, that "the abstinence of the Dominion Parliament from legislating to the full limit of its powers could not have the effect of transferring to any provincial legislature the legislative power which had been assigned to the Dominion by s. 91 of the Act of 1867". It cannot be said therefore that because a provincial statute is general in its operation, in the sense that its terms are not expressly restricted to matters within provincial competence, it may embrace matters within exclusive federal competence. Thus, to take an example, it has been held by this Court that general mechanics' lien legislation of a province could not be enforced against the property of an interprovincial pipeline: Campbell‑Bennett Ltd. v. Comstock Midwestern Ltd., [1954] S.C.R. 207. Again, provincial minimum wage legislation was held inapplicable to the employees of an interprovincial communications enterprise: see Minimum Wage Commission v. Bell Telephone Co. of Canada Ltd., [1966] S.C.R. 767, and, similarly, inapplicable to employees of a local contract postmaster: see Reference re Saskatchewan Minimum Wage Act, [1948] S.C.R. 248. This is because to construe the provincial legislation to embrace such activities would have it encroaching on an exclusive federal legislative area. On the other hand, provincial hours of work legislation was held applicable to employees of a hotel owned and operated by a railway company but not as an integral part of its transportation system: see C.P.R. v. Attorney‑General of British Columbia, [1950] A.C. 122.
...the Adoption Act did not purport to extend to areas of exclusive federal competence, e.g. Indians. It could only embrace them if the operation of the Act did not deal with what was integral to that head of federal legislative power, there being no express federal legislation respecting adoption of Indians. It appears to me to be unquestionable that for the provincial Adoption Act to apply to the adoption of Indian children of registered Indians, who could be compelled thereunder to surrender them to adopting non‑Indian parents, would be to touch "Indianness", to strike at a relationship integral to a matter outside of provincial competence. This is entirely apart from the question whether, if referentially incorporated, the Adoption Act could have any force in the face of various provisions of the Indian Act, securing certain benefits for Indians.
Counsel for the respondents cited a number of cases holding Indians to be subject to provincial legislation. Among them was Rex v. Hill (1907), 15 O.L.R. 406, and Rex v. Martin (1917), 41 O.L.R. 79. These, and other like cases, are simply illustrative of the amenability of Indians off their reservations to provincial regulatory legislation, legislation which, like traffic legislation, does not touch their "Indianness". Such provincial legislation is of a different class than adoption legislation which would, if applicable as provincial legislation simpliciter, constitute a serious intrusion into the Indian family relationship. It is difficult to conceive what would be left of exclusive federal power in relation to Indians if such provincial legislation was held to apply to Indians. Certainly, if it was applicable because of its so‑called general application, it would be equally applicable by expressly embracing Indians. Exclusive federal authority would then be limited to a registration system and to regulation of life on a reserve.
The fallacy in the position of the respondents in this case and, indeed, in that of all the intervenors, including the Attorney General of Canada, is in the attribution of some special force or special effect to a provincial law by calling it a "provincial law of general application", as if this phrase was self‑fulfilling if not also self‑revealing. Nothing, however, accretes to provincial legislative power by the generalization of the language of provincial legislation if it does not constitutionally belong there.
245. Laskin C.J. then discussed the case law dealing with the application to federally incorporated companies of the general companies legislation of a province. He went on, at pp. 762, 763 and 764:
The particular results in those two cases are of no direct relevance here, but simply illustrate the care that must be taken in the analysis of the issues and of the provincial legislation before subjecting federally incorporated companies to general provincial companies legislation. I cannot believe that any less care should be taken in analysis before subjecting Indians, coming as they do within a specific head of exclusive federal jurisdiction, to general provincial legislation, unless the inclusion of Indians within the scope of the provincial legislation touches them as ordinary persons and in a way that does not intrude on their Indian character or their Indian identity and relationship.
I would add that to give a primary effect to so‑called "provincial laws of general application", in the face of s. 88 of the Indian Act, is to fall into the same trap that was noted by Judson J. in Nykorak v. Attorney‑General of Canada, [1962] S.C.R. 331. The fact is that we are concerned here with a federal enactment which would be robbed of any meaning if the respondents' and intervenors' submissions went as far as they appeared to carry them. When s. 88 refers to "all laws of general application from time to time in force in any province" it cannot be assumed to have legislated a nullity but, rather, to have in mind the provincial legislation which, per se, would not apply to Indians under the Indian Act unless given force by federal reference.
I am fully aware of the contention that it is enough to give force to the several opening provisions of s. 88, which, respectively, make the "provincial" reference subject to the terms of any treaty and any other federal Act and subject also to inconsistency with the Indian Act and orders, rules, regulations or by‑laws thereunder. That contention would have it that s. 88 is otherwise declaratory. On this view, however, it is wholly declaratory save perhaps in its reference to "the terms of any treaty", a strange reason, in my view, to explain all the other provisions of s. 88. I think too that the concluding words of s. 88, "except to the extent that such laws make provision for any matter for which provision is made by or under this Act" indicate clearly that Parliament is indeed effecting incorporation by reference. To hold otherwise would be to reject the proposition quoted earlier from the Union Colliery Co. case and to treat the distribution of legislative powers as being a distribution of concurrent powers. [Emphasis added.]
246. The view of Laskin C.J. was approved by a unanimous decision of this Court, Dick v. The Queen, supra, at p. 327. Furthermore, the following passage is to be found at p. 322 of that case:
The Wildlife Act does not differ in this respect from a great many provincial labour laws which are couched in general terms and which, taken literally, would apply to federal works and undertakings. So to apply them however would make them regulate such works and undertaking [sic] under some essentially federal aspects. They are accordingly read down so as not to apply to federal works and undertakings: Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; Commission du Salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178.
247. This is the same rule of exclusive jurisdiction observed in Derrickson v. Derrickson, supra, where the Court held that the provisions of the British Columbia Family Relations Act dealing with the division of family property were not applicable to lands reserved for Indians. Chouinard J., writing the unanimous reasons of seven members of this Court, said at p. 296:
The right to possession of lands on an Indian reserve is manifestly of the very essence of the federal exclusive legislative power under s. 91(24) of the Constitution Act, 1867. It follows that provincial legislation cannot apply to the right of possession of Indian reserve lands.
When otherwise valid provincial legislation, given the generality of its terms, extends beyond the matter over which the legislature has jurisdiction and over a matter of federal exclusive jurisdiction, it must, in order to preserve its constitutionality, be read down and given the limited meaning which will confine it within the limits of the provincial jurisdiction.
It follows that the provisions of the Family Relations Act dealing with the right of ownership and possession of immovable property, while valid in respect of other immovable property, cannot apply to lands on an Indian reserve.
2. Criticism of Bell Canada 1966
248. Bell Canada 1966 has been criticized by certain commentators: see, for example, "Interjurisdictional Immunity in Canadian Federalism", by Professor Dale Gibson (1969), 47 Can. Bar Rev. 40, at pp. 53‑57; "The Supreme Court and the Law of Canadian Federalism", by Professor Paul C. Weiler (1973), 23 U.T.L.J. 307, at pp. 340‑43 and 363; Constitutional Law of Canada (2nd ed. 1985), by Professor Peter W. Hogg, at pp. 329‑32 and 465‑66.
249. These analyses have much in common and I think it will suffice to consider the comments of Professor Hogg, which are in greater detail and more recent.
250. Professor Hogg writes at pp. 330‑31:
It is important to notice that these interjurisdictional immunity decisions did not concern provincial laws which singled out federal undertakings for special treatment. On the contrary, the laws which were held inapplicable to the federal matter were laws of general application whose validity in most of their applications could not be doubted. Nor were the decisions based on the paramountcy doctrine: in none of the cases was there a conflicting federal law in existence. The theory behind the results appears to be that federal heads of power not only confer power on the federal Parliament, but also operate "defensively" to deny power to the provincial Legislatures. In my view, this theory is inconsistent with the basic pith and substance doctrine‑‑that a law "in relation to" a provincial matter may validly "affect" a federal matter.
...
From a policy standpoint, the immunity of federal undertakings seems unnecessary, because the federal Parliament can, if it chooses, easily protect undertakings within federal jurisdiction from the operation of provincial laws by enacting appropriate laws which will be paramount over conflicting provincial laws.
(Footnote references omitted.)
251. Professor Hogg also writes, at pp. 465‑66:
The Court held [in Bell Canada 1966] that rates of pay and hours of work were "vital parts" of the interprovincial undertaking, and that all such vital parts were subject to the exclusive legislative control of the federal Parliament. Therefore, although the provincial law was valid in its application to most employment in the province, it could not constitutionally apply to employment in a federally‑regulated industry.
The [Bell Canada 1966] case appears to have settled the issue of legislative jurisdiction over employment in the federal sectors in favour of exclusive federal power. In my opinion the Court came down on the wrong side of the issue. If Toronto Electric Commissioners v. Snider and the Labour Conventions case decided anything, it was that employment was a "matter" which came within "property and civil rights in the province". The regulation of collective bargaining or employment standards in federal industries should surely still be regarded as in relation to employment‑‑as well as in relation to the particular industry. The law has a double aspect, and should therefore be open to both levels of government.
(Footnote references omitted.)
252. This analysis gives rise to several observations.
253. The first is that the criticism says nothing of the close study by Martland J. in Bell Canada 1966 of the relevant provisions of ss. 91 and 92 of the Constitution Act, 1867.
254. The second observation is that this analysis does not address the essential question raised and answered by Martland J.: the critics refrain from defining the content of the exclusive legislative authority of Parliament over federal undertakings. This is necessary because the effect of s. 91(29) and the exceptions in s. 92(10) is to create exclusive classes of subject, those of federal undertakings, to which a basic, minimum and unassailable content has to be assigned to make up the matters falling within these classes. Martland J. considered that the management of these undertakings and their labour relations are matters which are part of this basic and unassailable minimum, as these matters are essential and vital elements of any undertaking. How is it possible to disagree with this? How can the exclusive power to regulate these undertakings not include at least the exclusive power to make laws relating to their management? Additionally, just as the management of the undertaking and working conditions determined by agreement or by operation of law are parts of the same whole in labour law, how can the exclusive power to legislate as to management of an undertaking not include the equally exclusive power to make laws regarding its labour relations? To deny this, as the critics have done, is to strip the exclusive federal power of its primary content and transform it simply into a power to make ancillary laws connected to a primary power with no real independent content, apart from the power to regulate rates and the availability and quality of services such as telephone services or railway services. The latter undoubtedly fall within the exclusive classes of subject represented by such federal undertakings, but there is nothing in the constitutional provisions, rules or precedents to indicate that the exclusive legislative authority of Parliament must or may be confined to so narrow a field. Indeed, rates and the availability and quality of services are inseparable from the wage scale that the undertaking must pay, the availability of its manpower, leave, vacation‑‑in short, working conditions. This is why in Bell Canada 1966 Martland J. refers at p. 772 to rates and services in their relation to wages, and it is why he comes back to this at p. 777 in arriving at his conclusions.
255. Professor Hogg writes that the theory which is the basis of Bell Canada 1966 not only confers a power on Parliament but operates defensively to deny the power of the Legislature. In my view, and I say so with the greatest respect, this theory does not confer on Parliament any power that it does not already have, since it is an integral and vital part of its primary legislative authority over federal undertakings. If this power is exclusive, it is because the Constitution, which could have been different but is not, expressly specifies this to be the case; and it is because this power is exclusive that it pre‑empts that of the legislatures both as to their legislation of general and specific application, in so far as such laws affect a vital part of a federal undertaking. The exclusivity rule is absolute and does not allow for any distinction between these two types of statute. However, the pith and substance doctrine does require a distinction to be made between these two types of statute, as well as between laws of general application and their application to particular institutions. General legislation on the management and working conditions of undertakings is legislation on matters falling within the property and civil rights class. But particular legislation on the management of federal undertakings and their working conditions, like that in the Canada Labour Code, is legislation on matters falling within an exclusively federal class of subjects, that of federal undertakings. The particular effect of general provincial laws that would result from their application to federal undertakings would, in the case at bar, constitute an encroachment on the exclusive jurisdiction of Parliament. The rule of the exclusive nature of fields of jurisdiction does not depend on a legislative drafting technique, as is clearly indicated by the following example given by Professor Dale Gibson in "The `Federal Enclave' Fallacy in Canadian Constitutional Law" (1976), 14 Alta. L. Rev. 167, at p. 172:
Most instances of interjurisdictional immunity arise as corollaries of the manner in which law‑making powers are distributed between the Parliament of Canada and the provincial legislatures under the British North America Act . . . .
A. Provincial legislation aimed at matters under federal jurisdiction.
This is the most obvious area of exemption. If a province enacted a statute regulating the noise caused by aircraft taking off and landing in the province, the statute would be wholly inoperative because it purported to deal with aviation, which is a matter within the exclusive legislative jurisdiction of the Parliament of Canada. Similarly, provincial statutes enacting special provisions for national parks, Indian reserves, defence establishments, and so on, would probably be ruled ultra vires on the ground that they dealt with subjects beyond the competence of the province.
B. General provincial legislation affecting essential aspects of matters under federal jurisdiction.
Even if a province were to enact a general anti‑noise statute aimed at every type of noisy activity and every locality in the province, it would be inapplicable to noise caused by aircraft operating within the province. The reason for this is that no provincial statute is permitted to operate so as to affect any "essential" or "integral" aspect of an enterprise under federal jurisdiction, and the noise produced by aircraft would undoubtedly be regarded as integral to their operation.
(Footnote references deleted.)
256. These comments correspond to those above cited of Laskin C.J. in Natural Parents, those of Chouinard J. in Derrickson v. Derrickson as well as the decision in Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292, at p. 311, in which it was held that a matter which is intrinsic to a field of federal jurisdiction falls outside the reach of provincial jurisdiction even if that matter has elements of `property and civil rights':
It is no doubt true that legislation of the character involved in the provincial legislation regarded from the standpoint of the use of property is normally legislation as to civil rights, but use of property for the purposes of an aerodrome, or the prohibition of such use cannot, in my opinion, be divorced from the subject matter of aeronautics or aerial navigation as a whole. If that be so, it can make no difference from the standpoint of a basis for legislative jurisdiction on the part of the province that Parliament may not have occupied the field. [Emphasis added.]
257. This principle appears to have been omitted in the criticism of Bell Canada 1966 offered by Professor Hogg. Yet this line of reasoning explains the nature of the exclusive federal power given that working conditions and labour relations cannot be divorced from the management of a federal undertaking.
258. In one of the foregoing passages, Professor Hogg contrasts exclusive powers with "concurrent" powers. This can only be a way of speaking. Professor Hogg likely intends to refer to the overlapping of federal and provincial legislation which may result from the exercise of an ancillary power by Parliament or the application of the double aspect theory; however, as I said at the start of these reasons, these are not concurrent powers such as the fields of agriculture or immigration.
259. Professor Hogg also suggests a new way of formulating the double aspect theory, which differs from those adopted by the British Columbia Court of Appeal and by the Quebec Court of Appeal in the case at bar. I will deal with this below in considering the double aspect theory.
260. I also note that Professor Hogg mentions but does not discuss the Natural Parents case. Derrickson v. Derrickson was handed down after the publication of the second edition of Professor Hogg's book.
261. That leaves the "policy" argument, according to which it would always be open to Parliament to protect federal undertakings against provincial statutes by an exercise of its so‑called ancillary power and the application of the paramountcy of federal legislation.
262. I must say that I find very little merit in such an argument, both in general terms and when invoked in the particular field of occupational health and safety.
263. It is an argument which relies on a spirit of contradiction between systems of regulation, investigation, inspection and remedial notices which are increasingly complex, specialized and, perhaps inevitably, highly detailed. A division of jurisdiction in this area is likely to be a source of uncertainty and endless disputes in which the courts will be called on to decide whether a conflict exists between the most trivial federal and provincial regulations, such as those specifying the thickness or colour of safety boots or hard hats.
264. Furthermore, in the case of occupational health and safety, such a twofold jurisdiction is likely to promote the proliferation of preventive measures and controls in which the contradictions or lack of co‑ordination may well threaten the very occupational health and safety which are sought to be protected.
265. Federalism requires most persons and institutions to serve two masters; however, in my opinion an effort must be made to see that this dual control applies as far as possible in separate areas.
266. With all due respect for the opposite view, therefore, I think that the decision in Bell Canada 1966 is correct.
267. However, even if I had doubts in this regard I would have great hesitation in overturning it.
268. I would note, first, that no one asked the Court to do this in connection with this trilogy when members of the Court expressly raised the question. What in the main the Court is being asked to do in these three cases is to characterize the Act and the Regulations so that they do not fall within the ambit of Bell Canada 1966, rather than to call that decision in question. For the reasons given above, this is an impossible undertaking.
269. The sources of Bell Canada 1966 date back to Bonsecours at the end of the last century and the Postal Service Case 1948 in the middle of this century. For the more than twenty years that it has stood in our law reports it has been directly or indirectly cited and followed in many decisions of this Court, right up to the present time. I have already mentioned in this regard Natural Parents, Attorney General of Canada v. St. Hubert Base Teachers' Association and Dick v. The Queen. To this must be added Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754, and Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031. (It may be noted in passing that the latter two cases, far from contradicting Bell Canada 1966 as was suggested, expressly confirm the rules stated in that case.) To this list should also be added Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115. In that case Dickson J., as he then was, writing the unanimous reasons of the nine judges of this Court, summarized at p. 132 the rules derived from Construction Montcalm Inc. v. Minimum Wage Commission, supra, in which it is clear that the second, third and fourth rules so summarized are based on Bell Canada 1966.
270. It goes without saying that other courts have followed these precedents. There is no need to list their judgments. I will simply give a few examples: Cour des sessions de la paix du district de Montréal v. Association internationale des travailleurs en ponts, en fer structural et ornemental, local 711, [1970] C.A. 512; Re Field Aviation Co. and International Association of Machinists & Aerospace Workers Local Lodge 1579 (1974), 45 D.L.R. (3d) 751 (S.C. Alta.); Jebsens (U.K.) Ltd. v. Lambert (1975), 64 D.L.R. (3d) 574 (B.C.C.A.); Joyal c. Air Canada, [1976] C.S. 1211, reversed on other grounds by the Court of Appeal at [1982] C.A. 39; Re Culley and Canadian Pacific Air Lines Ltd., [1977] 1 W.W.R. 393 (B.C.S.C.); Re Attorney‑General of Quebec and A. & F. Baillargeon Express Inc. (1978), 97 D.L.R. (3d) 447 (Que. C.A.); Re Canadian Pacific Ltd. and Attorney‑General of Alberta, supra; Bell Canada v. Commission de la santé et de la sécurité du travail, [1983] C.S. 677; Canadian Human Rights Commission v. Haynes, supra; Office de la construction du Québec c. Cie des chemins de fer nationaux du Canada, J.E. 83‑198 (Que. S.C.)
271. It is also reasonable to assume that, in view of this consistent line of authority which has become well‑settled law, those chiefly concerned, namely unions and employers, have generally made it a practice to organize their affairs accordingly. One would think the same would be true of the administrative tribunals and bureaucracies concerned. Whatever their jurisdiction, however, the latter rarely resist the suggestion that the limits of their power should be expanded.
3. Double Aspect Theory
272. Consideration of the double aspect theory now requires me to discuss propositions four and five stated at the beginning of my reasons.
273. Proposition four concerns the application to federal undertakings of provincial workmen's compensation schemes. This rule has already been qualified in Bell Canada 1966. For the reasons I am about to indicate, it does not in any way alter the outcome of the case.
274. Proposition five, according to which Parliament and a province may enact two relatively similar rules provided they are legislating for different purposes and one the basis of distinct aspects, has no application in the case at bar.
275. I outlined at the start of my opinion the reasons why the British Columbia Court of Appeal considered that recourse to the double aspect theory was justified.
276. These reasons were summarized in the factum filed by the Attorney General of Canada in Alltrans; that summary demonstrated the direct connection made by the Court of Appeal between the double aspect theory and the argument that there is a necessary complementarity between preventive measures on occupational health and safety and compensatory provisions on industrial accidents:
In the judgment of the Court of Appeal below Lambert J.A., writing per curiam, held that provincial legislation fixing safety conditions was applicable to federal undertakings. On his reasoning, once the principle of subjection of federal undertakings to workers' compensation schemes was established, it followed that the province could also control their safety conditions. Parliament could also regulate safety matters through its authority over federal undertakings. Hence, according to the principle of double aspect applied, both federal and provincial legislation could live, subject to federal paramountcy in case of conflict.
277. The use of the double aspect theory by the British Columbia Court of Appeal depends on a preliminary determination that the preventive scheme created by the legislation of British Columbia is applicable to federal undertakings because it cannot constitutionally be severed from the compensatory scheme established by that same legislation. As Parliament may also establish, and in fact has established, a preventive scheme for federal undertakings, in the opinion of the Court of Appeal the two preventive schemes can exist side by side except in cases of conflict, under the double aspect theory.
278. This reasoning is defeated by its own underlying premise. Once it has been decided, as it must be, that the provincial preventive scheme has to be severed from the compensatory scheme and is not applicable to federal undertakings, these undertakings are no longer subject to two preventive schemes, only to one, the federal scheme, and there is no further reason for the double aspect theory.
279. The complementarity argument impressed Bouck J. of the British Columbia Supreme Court. He said the following on this point at p. 84:
But on the other side of the issue lies the efficient operation of the Workers Compensation Act. As the Board may be called upon to provide rehabilitation services and pensions for those injured in the work place, it must have some means of controlling the occurrence or reoccurrence of accidents. Fines and closure orders are one method of enforcement. Regrettably, I have concluded they are not available to the Board.
280. Bouck J. added, on the next page:
Still, the Board does not appear to be without a remedy. Under s. 42, it may fix a special rate for Alltrans where it "is shown ... the hazard or cost of compensation differs from the average of the class or sub‑class to which the industry or plant (of Alltrans) is assigned".
281. I note that counsel for Alltrans and the Attorney General of Canada concede that the compensatory provisions of the Workers Compensation Act apply to federal undertakings. Bouck J. regretted that in respect of federal undertakings the power to adopt preventive measures is separate from the power to adopt compensatory measures given that, at least in theory, unified powers of prevention and compensation could be exercised in a more coherent or better co‑ordinated way than divided powers. In the factum they filed in Alltrans, the Board and the British Columbia Attorney General made the same argument:
...the Appellant accepts the benefit of the scheme insofar as it is protected from Court actions by injured employees who qualify for compensation, but argues the concomitant obligation under the scheme to maintain a safe workplace cannot be imposed on it.
282. The Board and the British Columbia Attorney General also point out, perhaps to draw attention to the practical problems of a division referred to by the Court of Appeal in the final passage of its reasons which I cited above, that the assessments to which Alltrans Express Ltd. is subject are not only paid into the workmen's compensation fund but also serve to defray the costs of administering the Regulations.
283. The complementarity argument seems attractive at first glance, de lege ferenda, but it has no legal validity unless it is possible to raise it to the constitutional level and Bouck J. properly saw that it is not.
284. Before passing from a legislative to a constitutional analysis, it is worth noting that there is nothing to suggest that the compensatory provisions of the Workers Compensation Act are made useless by the fact that the preventive provisions are not applicable to federal undertakings. First, Alltrans Express Ltd. concedes that the workplaces controlled by it remain subject to inspections by the Board in accordance with the compensatory provisions and, if necessary, to determine the level of its contributions to the indemnity fund. Second, according to an uncontradicted affidavit, the Board is not attempting either to apply the preventive measures to merchant ships registered under the Canada Shipping Act or to inspect such ships, although sailors benefit in some cases from accident compensation provided by the provincial Act.
285. Finally, there remains the argument that the assessments Alltrans Express Ltd. is required to pay contribute to the financing not only of the workmen's compensation fund but also of the administration of preventive measures. That, it seems to me, is a situation which only Alltrans Express Ltd. could complain of if, as is my view, the preventive measures are not applicable to it. Furthermore, it is a difficulty which is open to solution between governments working together.
286. At the same time I would emphasize that in Quebec, as I noted above, compensatory and preventive measures are to be found in two separate statutes, the Act and the Workmen's Compensation Act. The Quebec experience has shown that preventive and compensatory systems can function independently without any adverse consequences for the effectiveness of either system. Professor Lippel notes regarding the twofold nature of the Quebec system:
[TRANSLATION] ...in addition to remedial services...the existing legislation gives workers the protection of certain preventive measures which in this case are really intended specifically for them, and one might assume there would have been some historical coherence in the legislative policies relating to remedial services and preventive measures.
Our review of legislation since 1885, the date at which the legislator first took interest in this matter in the wake of developing industrialization, indicates that this is not so. The two components of the worker's bundle of individual rights in this area have developed along their own lines.
(Katherine Lippel, "Droit des travailleurs québécois en matière de santé (1885‑1981)" (1981‑82), 16 R.J.T. 329, at p. 331.)
287. There would also be the possibility, if it were regarded as absolutely necessary to combine the compensatory and preventive schemes, that the federal Parliament acting under its ancillary power could enact a compensation scheme applicable to federal undertakings. The British Columbia Court of Appeal refers to this possibility at p. 391 of its judgment. I express no opinion as to the advisability or the constitutionality of such a measure.
288. However, the British Columbia Court of Appeal took the argument regarding the complementarity of preventive and compensatory measures further than did Bouck J. With respect, I am of the view that it erroneously transformed this legislative argument de lege ferenda into a constitutional argument. This at least is the way I interpret the following reasons of Lambert J.A. At page 389, he wrote:
The provincial aspect of the matter lies in the concern of the province, generally, for public health...and, more particularly, for the scheme of worker safety, treatment and compensation embodied in the Workers Compensation Act. [Emphasis added.]
289. On the same page, Lambert J.A. cited the Tysoe report indicating that the first objective of the Workers Compensation Act is prevention and its second objective compensation. Lambert J.A. added:
That statement underscores the provincial aspect of the matter.
290. Finally, Lambert J.A. resolved the matter at p. 390:
...they [counsel for Alltrans and for the Attorney‑General of Canada] want to cut away what Mr. Justice Tysoe calls the first object of the Act, namely worker safety. I do not think that the Act should be severed in that way for federal undertakings . . . .[Emphasis added.]
291. What Lambert J.A. decided, in other words, was that because a federal undertaking is subject to the compensatory provisions of provincial legislation it is constitutionally subject to the preventive provisions under the same statute, which in his opinion form an indivisible whole.
292. In my view, this conclusion is a non sequitur. It is not based on any analysis of significant differences which, in terms of the constitutional law characterization, distinguish compensatory from preventive measures.
293. I refer, first, to what Martland J. said of a compensatory scheme in Bell Canada 1966, at pp. 773‑74:
In my opinion there is a distinction between legislation of that kind, and that which is in issue here. The Workmen's Compensation Act conferred upon injured employees and upon the dependants of deceased employees certain statutory rights to compensation where the injury or death resulted from an accident arising out of and in the course of the employment. Compensation was payable not by the employer, but out of a fund administered by the Board to which employers were required to contribute. Viscount Haldane (p. 191) refers to the employee's right under the Act as the result of a "statutory condition of employment", but I think it is more accurately described as a statutory right. The Act did not purport to regulate the contract of employment. What it did do was to create certain new legal rights which were to be in lieu of all rights of action to which the employee or his dependants might otherwise have been entitled at common law or by statute.
On the other hand, a statute which deals with a matter which, apart from regulatory legislation, would have been the subject matter of contract between employer and employee, e.g., rates of pay or hours of work, affects a vital part of the management and operation of the undertaking to which it relates. This being so, if such regulation relates to an undertaking which is within s. 92(10)(a), (b) or (c), in my opinion it can only be enacted by the federal parliament.
294. In general, workmen's compensation schemes, whether in British Columbia, Quebec or the schemes in all or most of the provinces, are statutory insurance schemes of no‑fault collective liability, which replace the former systems of individual civil liability based on fault. They are generally financed, at least in part, by contributions from employers. They create a complex system of direct statutory remedies and subrogatory remedies which have little to do with the old common law or droit commun remedies. Their main purpose is compensation and thus more or less a form of final exhaustion of remedies. They are adopted by provinces pursuant to their jurisdiction over property and civil rights, but not pursuant their jurisdiction over contracts. It is in any case difficult to conceive in practice of such complex and elaborate schemes having a merely contractual basis. Although their purpose is to compensate workers they are not part of the contract of employment, they are not labour relations schemes and they do not constitute working conditions: they do not intervene to compensate workers until after their health or safety has been affected. They also do not impinge on the management or operation of undertakings.
295. As shown earlier, it is precisely because they do not impinge on the labour relations, working conditions, management or operation of undertakings that such compensatory schemes can be applied to federal undertakings.
296. Unlike compensation, which is a relatively fixed or stable concept, that of prevention is essentially dynamic and knows no natural boundaries. But however effective such prevention schemes may be, they will never entirely remove the necessity for compensation schemes. As I have tried to show above and need not discuss any further, preventive provisions must of necessity operate through labour relations, working conditions and the management of an undertaking. If they do not operate through these areas, they have no basis in reality. The preventive provisions of the British Columbia Act in this regard are less elaborate than those of the Act, but they are of the same type.
297. Accordingly one can and must distinguish between the constitutional law classification of compensatory schemes and that of preventive schemes for purposes of their application to federal undertakings. The British Columbia Court of Appeal accordingly erred in holding that the compensatory scheme cannot be severed from the preventive scheme.
298. I think it is wrong to speak of double aspect in another way. An examination of the preventive scheme of the Act and the preventive scheme created by the federal legislator in Part IV of the Canada Labour Code demonstrates that both legislators are pursuing exactly the same objective by similar techniques and means. A comparison of the statement of principle in each statute leaves no doubt as to the similarity of their purposes:
2. The object of this act is the elimination, at the source, of dangers to the health, safety and physical well‑being of workers.
(s. 2 of the Act)
79.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with and or occurring in the course of employment to which this Part applies.
(s. 79.1 of the Canada Labour Code)
299. The exact correspondence of these two objectives indicates that there are not two aspects and two purposes depending on whether the legislation is federal or provincial. In my opinion, the two legislators have legislated for the same purpose and in the same aspect. Yet they do not have concurrent legislative jurisdiction in the case at bar, but mutually exclusive jurisdictions. In this regard the Attorney General of Quebec argued that the provisions of Part IV of the Canada Labour Code were adopted by Parliament not pursuant to its exclusive jurisdiction over federal undertakings but under its ancillary jurisdiction, analogous to that which it might perhaps exercise if it were to create a workmen's compensation scheme for federal undertakings. I have already had occasion to discuss this. As they deal with the labour relations and the management of federal undertakings, the provisions of Part IV of the Canada Labour Code in my opinion fall within the exclusive jurisdiction of Parliament which, as we saw earlier, would otherwise be stripped of any distinct or meaningful content.
300. I have already mentioned that the British Columbia Court of Appeal's reasoning was adopted by Monet J.A. in Bell Canada. Beauregard J.A., for the majority of the Quebec Court of Appeal, while approving Monet J.A.'s opinion on this point, referred to the double aspect theory at pp. 518‑19 but in a manner which differs from that of the British Columbia Court of Appeal:
[TRANSLATION] I share the opinion of Monet J.A. that the object of the dispute is related to both health and labour relations.
301. This opinion of Beauregard J.A. nonetheless approaches that expressed in the following passages from the reasons of the British Columbia Court of Appeal at pp. 389‑90:
The provincial aspect of the matter lies in the concern of the province, generally, for public health and for medical and hospital care, and, more particularly, for the scheme of worker safety, treatment and compensation embodied in the Workers Compensation Act. It relates to workers, generally, as workers in the work place.
...
I turn now to the federal aspect. This relates not to workers, generally, as workers in the work place, but to workers in specific relationship to their employers, and to the operation and management of their employers' businesses. In that aspect, health and safety in the work place may be or may become a working condition in the employer‑employee relationship. [Emphasis added.]
302. Whatever the significance of these nuances, I am of the view with the greatest respect for the contrary opinion, that the formulation of the double aspect suggested by Beauregard J.A. is no better than that of the British Columbia Court of Appeal and that his reasoning is incorrect in that it makes an artificial distinction: the Act is considered differently depending on whether it is viewed from the standpoint of employer‑employee relations (labour relations) or of the employee alone (his health and safety). Such a distinction is impossible. The provisions of the Act represent working conditions for workers as much as for employers, in view of the correlation between their rights and their obligations. The health and safety of workers are no more than a purely nominal "aspect" and a goal that cannot be attained except by means of a labour relations system based on reciprocal rights and obligations of employers and workers. Working conditions remain a global concept which cannot be divided, and the Act treats them as such. As I tried to show earlier in the section titled "Analysis and Characterization of the Act", it is impossible to sever the objective sought‑‑the health and safety of workers‑‑from the nature of the working conditions through which that objective finds expression.
303. Finally, there is another formulation of the double aspect theory, suggested by Professor Hogg, which differs from those used by the British Columbia Court of Appeal and the Quebec Court of Appeal. In a passage cited above, Professor Hogg suggests the following formulation at pp. 465‑66:
The [Bell Canada 1966] case appears to have settled the issue of legislative jurisdiction over employment in the federal sectors in favour of exclusive federal power. In my opinion the Court came down on the wrong side of the issue. If Toronto Electric Commissioners v. Snider and the Labour Conventions case decided anything, it was that employment was a "matter" which came within "property and civil rights in the province". The regulation of collective bargaining or employment standards in federal industries should surely still be regarded as in relation to employment‑‑as well as in relation to the particular industry. The law has a double aspect, and should therefore be open to both levels of government.
304. In short, legislation such as the Act relates to both labour relations and federal undertakings. On the one hand, this proposition may be seen as containing at least a partial concession: it appears to concede that such legislation relates to an exclusively federal field. On the other hand, however, and more importantly, this further version of the double aspect theory seems to me to be wrong because, with respect, it is based on confusion between a matter, labour relations, and a class of subjects, federal undertakings. Additionally, this further version seems to me to ignore the fundamental or principal content that must be given to the federal power, and to strip this power of its content.
4. Impairment of Federal Undertakings
305. As I observed earlier, appellants and the Attorney General of Quebec argued that the Act does not impair the operations and functioning of Bell Canada.
306. This argument might be relevant if it were held that the application of the Act does not bear upon working conditions and labour relations as well as the management of a federal undertaking. Yet precisely because it must be held that the Act encroaches on a field that falls within the exclusive jurisdiction of Parliament and is, for this reason, not applicable to federal undertakings, it is not relevant whether the Act impairs or not the operations and functioning of Bell Canada and Canadian National. It suffices that the application of the Act bear upon the undertaking in what makes it specifically of federal jurisdiction for that undertaking to fall outside the ambit of this legislation. The same must be said of the Regulations in Alltrans.
307. I believe this analysis is consistent with that used in Bell Canada 1966. What was immediately at issue in that case was the requirement that the undertaking pay a levy of some $50,000 a year from 1959 to 1965, and it is unlikely that Bell Canada would not have ample funds to pay such amounts. It can also be assumed that Bell Canada was already paying its employees at least the minimum wage specified by the provincial statute. The undertaking was therefore not impaired by application of the provincial statute. Nonetheless, at p. 770 Martland J. cited s. 13 of the Minimum Wage Act, which gave the Commission the power to determine by ordinance the minimum wage, terms of payment, working hours, conditions of apprenticeship "and the other working conditions deemed in conformity with the spirit of the act". Martland J. noted that the Commission had in fact adopted such an ordinance which, by its terms, applied to Bell Canada. He subsequently concluded that the power to regulate wages and working conditions, such as the wage scale of the undertaking, affects a vital part of the management and operation of the undertaking. What was held inapplicable to Bell Canada was thus not only the regulations imposing a levy of $50,000 which gave rise to the case, but also the ordinance enacted pursuant to s. 13, the regulatory power created by that section and the Minimum Wage Act as a whole.
308. Appellants and the Attorney General of Quebec argued in the case at bar that the re‑assignment of a pregnant worker would not impair the undertaking, especially as the pregnant worker would eventually have to leave her work in any case, at least temporarily. I am quite prepared to admit that the exercise of this right by a pregnant worker would not go so far as to impair or paralyze the undertaking. However, given that it deprives the undertaking of part of its work force in the long distance communication sector requiring the aid of an operator, I would not be ready to concede that such a right of re‑assignment does not by its very nature affect a vital or essential part of the Bell Canada undertaking.
309. The same may be said for Alltrans. The report directed Alltrans Express Ltd. to take the necessary action to ensure that its workers wear regulation safety boots and ordered it to establish and maintain an Industrial Health and Safety Committee. As we shall see more specifically in the reasons in that case, such a committee resembles the health and safety committee created by the Act and the safety and health committee set up by the Canada Labour Code. These are parity committees on which there must be the same number of representatives of the employer as of the workers. Their functions are similar to those of the health and safety committees contemplated by the Act, although their decision‑making powers are fewer and described less precisely. I readily admit that Alltrans Express Ltd. might have complied without experiencing any impairment. However, the obligations imposed by this report are of the same type as most of those imposed on employers by the Act: they relate to working conditions and labour relations and to the management of the undertaking. By their very nature, therefore, they affect vital aspects of the undertaking and they encroach on the exclusive legislative authority of Parliament. As the report is directed only at Alltrans Express Ltd., it is not only inapplicable, it is ultra vires.
310. I am therefore of the view that the test of impairment is insufficient and is not conclusive in cases where, without going so far as to impair or paralyze federal undertakings, such application affects a vital part of those undertakings.
311. Thus, in Canadian National, and as we shall see in greater detail in the reasons in that case, the inspector Christiane Courtois held an investigation and filed a report on the railway collision out of which the case arose. She analysed the possible causes of the accident and settled on the following: [TRANSLATION] "Failure to carry out a train order according to its terms". She also referred to factors relating to the working environment, including defects in the communication system making it impossible [TRANSLATION] "to receive conversations on another train or even ensure clear communications with another train or station that could be a means of exercising control over the implementation of train orders". She also referred to inadequacies in the signals, the night schedule and its effects on the alertness of crews. She ended with conclusions which have the appearance of remedial orders, though she called them "recommendations". The principal recommendation reads as follows:
[TRANSLATION] 2. I recommend, pursuant to s. 51.5 of the AOHS, that Canadian National submit to the CSST a schedule in which the company describes the stages for implementing an effective communication system that will ensure communication at all times and all points on the line, between two trains or between a train and a control point (dispatcher in Montréal or operator in a station on the line). With the help of this communication system, the company will set up a control procedure to ensure that train orders are implemented. This procedure should provide for frequent communications with train crews. It should be submitted to the CSST at the same time as the aforementioned schedule.
312. She further recommended the adoption of interim measures [TRANSLATION] "to remind train crews of the anticipated location of crossings".
313. I assume for the purposes of discussion that these recommendations do not conflict with any valid federal regulations, and I do not think it is clear that they impair the operations of the railway. However, it is plain that if these recommendations had taken the mandatory form of remedial orders, as authorized by the Act, and as might have been done for a provincial railway, then the vital or essential elements of the undertaking would have been affected. Such provisions would manifestly have been "railway legislation strictly so‑called", and as they would have been addressed only to Canadian National and no one else, not only would they be inapplicable, but ultra vires. Indeed, it is likely that it was because such provisions are so obviously unconstitutional that they were described as "recommendations".
314. The impairment test is not necessary in cases in which, without going so far as to impair the federal undertaking, the application of the provincial law affects a vital part of the undertaking. This appears to be the notion which Professor Hogg quite properly mentions at p. 329 of his text, subject to our disagreement on another point:
From the company cases a similar idea of immunity was carried over to cases concerning federally regulated undertakings.
315. Professor Hogg comments, in a footnote:
The issue is not quite the same. The federal incorporation power does not authorize regulation of the activities of federally‑incorporated companies, and therefore there can be no immunity from provincial laws regulating the activities of such companies. Undertakings (whether incorporated federally or provincially or outside Canada or even if unincorporated) operating in fields of federal legislative competence are, by definition, subject to federal regulation of their activities, and therefore some immunity from provincial laws purporting to regulate the activities of such undertakings is possible. I argue later that no immunity is necessary, but, if there is to be some immunity, one would expect it to be narrower for undertakings whose only "federal" characteristic is that they are federally‑incorporated companies than for undertakings operating within fields of federal legislative competence.
316. In order for the inapplicability of provincial legislation rule to be given effect, it is sufficient that the provincial statute which purports to apply to the federal undertaking affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it. Moreover, appellants and the Attorney General of Quebec only put forward the impairment argument because they contend that the Act has no effect on working conditions and labour relations or on the management of Bell Canada. It is on this assumption that, according to a certain line of authority, they would have to show that the Act does not impair a federal undertaking. As I reject this assumption, I would ordinarily have nothing more to say on the point.
317. However, I think it is worth making certain clarifications regarding the concept of impairment. If the application of a provincial statute to a federal undertaking has the effect of impairing or paralyzing it, that a fortiori is an almost certain sign that such application bears upon the specifically federal nature of the undertaking and constitutes an encroachment on the exclusive legislative authority of Parliament. It is for this reason that it would appear to me to be useful to show how various provisions of the Act are in fact likely to impair the operations and functioning of federal undertakings, which is an additional reason for regarding it as inapplicable to those undertakings, regardless of any conflict between federal and provincial legislation.
318. The concept of impairment apparently originated in decisions of the Judicial Committee when it had to be decided the extent to which federally incorporated companies are subject to provincial statutes which are general in application, and in particular to the general companies legislation in effect in a province. Laskin C.J. summarized the question in Natural Parents, at pp. 761‑62, and I can do no better than to quote him:
If the phrase "provincial laws of general application" has any source, it is in the "federal company" cases, involving the relationship of general companies legislation of a province to federally incorporated companies. Thus, in John Deere Plow Co. v. Wharton, [1915] A.C. 330, at pp. 342‑3, Lord Haldane commented as follows:
It is true that even when a company has been incorporated by the Dominion Government with powers to trade, it is not the less subject to provincial laws of general application enacted under the powers conferred by s. 92.
The history of this matter is well known because from the very beginning of its concern with the British North America Act the Privy Council drew a distinction between authority to incorporate companies and to prescribe their powers and their corporate structure and the internal relationship of shareholders and directors and authority to regulate the activities or enterprises in which the companies are engaged. It was in this connection that Lord Haldane made the observation above quoted. Yet in the very case in which he made it, the Privy Council concluded that it was not open to a province under its general companies legislation to require a licence of a federally incorporated company as a condition of carrying on business qua company because this would in effect prevent it from exercising the powers with which it was endowed by federal authority. Attorney‑General of Manitoba v. Attorney‑General of Canada, [1929] A.C. 260, and Lymburn v. Mayland, [1932] A.C. 318, are two contrasting cases in which the principle of John Deere Plow, seen in later cases like Great West Saddlery Co. v. The King, [1921] 2 A.C. 91, was applied to provincial legislation which was alleged to put federally incorporated companies at the mercy of the province in respect of the sale of their shares.
319. Great West Saddlery Co. v. The King, [1921] 2 A.C. 91, in particular is the source of the rule according to which, although federally incorporated companies are subject to provincial statutes of general application such as mortmain legislation and statutes requiring licences for certain purposes, the legislator cannot attach to such statutes sanctions which "would sterilize or destroy the capacities and powers" validly conferred on such companies by Parliament.
320. This concept of "sterilization" or "destruction", referred to herein as the concept of impairment, was transposed to the question of whether federal undertakings were subject to provincial statutes of general application. Thus, in Attorney‑General for Ontario v. Israel Winner, [1954] A.C. 541, the Judicial Committee held, inter alia, that the control a province can exercise over its highways does not extend to allowing it to impair, as by a local transportation licensing system, the operations of an international and interprovincial motor bus transport undertaking, though it authorizes the province to regulate the speed of vehicles or the side of the road on which they must operate. Similarly, in Campbell‑Bennett Ltd. v. Comstock Midwestern Ltd., [1954] S.C.R. 207, this Court held that a mechanic's lien is not applicable to a pipeline which is an interprovincial work and undertaking, as it would permit sale in parts piecemeal.
321. While it is not necessary for the purpose of concluding as to the inapplicability of a provincial statute, the transposition of the concept of impairment from the field of federally incorporated companies to that of federal undertakings may be valid in cases in which the application of provincial legislation to federal undertakings in fact impairs the latter, paralyzes them or destroys them. Indeed, many provisions which are fundamental to the Act are clearly likely to impair the undertaking to which it applies.
322. In deciding what constitutes impairment the Court cannot disregard potential impairment or effects, especially when, as here, far‑reaching provincial statutes are at issue here designed to be accompanied by a large number of regulations, ordinances or remedial orders, or which can have major as well as minor effects on the undertaking, effects which cannot be foreseen at the time the Court must rule on whether the statute is applicable, as is true for example with exercise of the right of refusal. Furthermore, though the constitutional questions presented in the cases which make up this trilogy only make reference to certain provisions of the Act, these provisions must be placed in the context of the Act taken as a whole, as counsel did in their factums and oral argument. In my view, many of the fundamental provisions of the Act have the effect of impairing the undertakings to which they apply.
323. This is true, for example, of the right of refusal of a worker who has reasonable grounds to believe that the performance of work would expose him to danger (s. 12). Although the right of refusal is an individual and not a collective right, the Act provides in s. 27 that several workers may refuse to perform work by reason of the same danger. It further provides in s. 28 that the exercise of the right of refusal may result in depriving other workers in the undertaking of work. When one or more workers, after the notice of refusal mentioned in s. 15, maintain their refusal, the intervention of an inspector may be requested by the workers who maintain their refusal, by the safety representative or by the employer. The inspector must settle the matter "immediately" by a substantiated decision recorded in writing: s. 19. Such a decision is executory until revised by the regional chief inspector. The worker, the safety representative and the employer may, within ten days of the mailing of the inspector's decision, apply to the regional chief inspector for a review by him: s. 21. The regional chief inspector's decision must be substantiated and recorded in writing, and is executory until revised by the C.S.S.T.: ss. 21 and 22. Finally, the worker, the safety representative and the employer may within ten days of the mailing of the regional chief inspector's decision apply to the Commission for a review of the decision, and this must be substantiated and recorded in writing but no prescribed time is given by the Act: s. 23.
324. A whole range of cases can readily be imagined in which exercise of the right of refusal might at one extreme have consequences of little significance to the undertaking but, at the other extreme, have devastating effects. In some cases, the problem may be resolved to the satisfaction of all concerned in less than an hour. The interruption will not have deprived the other workers of work. There will be very little effect on the undertaking. However, a quite different but in no way theoretical scenario can also be imagined: in assembly line work, one or more workers exercise their right of refusal and interrupt the assembly line; hundreds of other workers, perhaps most of those in the undertaking, are deprived of work as a result. The problem, instead of being resolved in an hour, drags on for two or three weeks, in view of the time needed for appeals to the regional chief inspector and the C.S.S.T. If the inspector and the regional chief inspector, whose decisions are executory, have ruled against the employer, the latter may, not of course in legal terms but from a practical standpoint, be faced with a situation in which the effects are equivalent to those of a strike, but with one difference: the workers who have exercised the right of refusal will be deemed to be at work and accordingly entitled to be paid. The exercise of the right of refusal in such a case manifestly impairs the operations of the undertaking.
325. Between this major impairment and the minor inconvenience mentioned above, there may be hundreds of possible interruptions, of greater or less duration, affecting a greater or smaller number of other workers and more or less of the operations of the undertaking, and it will be impossible for the Court at the time it must decide on whether the Act is applicable to foresee the number and significance of these at least temporary interruptions. In such circumstances, it is the right of refusal as a whole, with all it may entail, which must be held inapplicable to the federal undertaking. I think it is clear that the courts could not be asked to decide on a case by case basis at what point there is impairment.
326. Other provisions of the Act may impair a federal undertaking. Thus, section 62 provides that in an accident "The scene of the incident must remain unchanged until it has been investigated by the inspector, except to prevent an aggravation of its consequences, or unless the inspector authorizes a change". In the case of an accident such as that which occurred in Canadian National, the effect of this provision is to close down the railway and interrupt the railway service so long as the investigation is in progress, unless the inspector orders otherwise. This is an impairment, temporary certainly, but complete as long as it lasts.
327. An inspector may also, under ss. 186, 187, 188 and 189, order the suspension of work or the complete or partial shutdown of a workplace and, if necessary, affix seals if he or she considers a worker's health, safety or physical well‑being to be endangered. No one may then enter the workplace without the inspector's authorization. Work cannot resume and the workplace cannot be reopened until the inspector so authorizes. Under these powers, an inspector could, if the Act is applicable to Canadian National or to Bell Canada, close down a train station, a railway signal depot, a railway which he or she regarded as obsolete, or an essential part of the Bell Canada telecommunications network. Such measures are not punitive provisions designed to enforce the legislation or provincial regulations, like those in question in Great West Saddlery Co. v. The King, supra, and those to which Lambert J.A. alludes to in Alltrans. They are provisions designed to protect occupational health and safety and are an integral part of the preventive system set up by the Act. However, it is clear that they would impair undertakings such as Canadian National and Bell Canada.
328. Section 182 of the Act empowers an inspector to "issue a remedial order requiring a person to comply with this act or the regulations, and fix the time in which he must comply". Section 184 provides that a person to whom an inspector has given a remedial order shall carry it out in the appointed time. These provisions must be read not only in light of ss. 186 et seq., regarding the shutting down of workplaces, but also in relation to s. 236, which sets out offences and penalties against "Every person who contravenes this act or a regulation or refuses to conform to a decision or order rendered under this act or the regulations . . . ."
329. Here again, a range of remedial orders may be imagined that would have the most minimal or the greatest impact on the undertaking. A remedial order directing the repair or replacement of a defective electric wire may only involve an expenditure of a few dollars. But an order directing that the undertaking immediately replace equipment that may be old or new, but that is regarded as dangerous, and is worth hundreds of thousands or even millions of dollars, may depending on the circumstances impair the operations of the undertaking or, at the very least, affect vital aspects of the federal undertaking and even, as in the case at bar as well as in Canadian National, affect the federal work which is the infrastructure of the undertaking.
330. Before passing on to the next heading and then to my conclusions, I must qualify the opinion I have expressed throughout these reasons, that the Act as a whole is inapplicable to federal undertakings. It is clear, for example, that the provisions creating the C.S.S.T. remain applicable for the purposes of administering other legislation, which may apply to federal undertakings. It is also possible that regulations adopted pursuant to other statutes, which under the transitional provisions of the Act are deemed to be adopted pursuant to the Act, continue to be applicable to federal undertakings. This was not raised in the written or oral arguments. I must also mention that there was no discussion of the severability of the Act in terms of applying it to federal undertakings. What I have said regarding the Act as a whole must therefore be limited to the provisions I have analysed in order to characterize and classify it, which were the only ones discussed by the parties.
IX‑‑Conflict with Federal Legislation
331. Are sections 33, 36, 37 and 40 to 45 of the Act inoperative because they conflict with federal legislation? As we saw above, the majority on the Quebec Court of Appeal held that there is an irreconcilable conflict between the provincial and federal legislation. Monet J.A. acknowledged the difference between the procedures provided by the two statutes for the settlement of disputes and maintained that [TRANSLATION] "the conflict must go beyond procedure" to render the provincial act inoperative.
332. In my opinion, and I say so with respect for the opposite view, a procedural conflict may suffice to render the provincial act inoperative if the conflict is irreconcilable or if, as the majority held, it leads to a deadlock. The mere duplication of two enactments certainly does not make the Act inoperative: Multiple Access Ltd. v. McCutcheon, supra. However, in view of the difference between the mechanisms resulting in re‑assignment in both statutes, between the rights conferred on workers under the two schemes, between the types of danger which give rise to the right, between the procedures and the avenues of appeal, I am inclined to think as did the majority on the Court of Appeal that there is a practical and functional incompatibility between the two groups of provisions.
333. However, I do not have to decide this since, in my opinion, the Act is not applicable to Bell Canada.
X‑‑Conclusion
334. I would answer the first constitutional question in the negative.
335. In view of my answer to the first question, it is not necessary to answer the second.
336. I would dismiss the appeal with costs throughout. However, no costs should be awarded for or against the mis en cause.
Appeal dismissed with costs.
Solicitors for the appellants: Dallaire, Joly‑Ryan, Lafontaine & Associés, Longueuil.
Solicitors for the respondent: Buist, April & Plouffe, Montréal; Stikeman, Elliott, Tamaki & Associés, Montréal.
Solicitor for the mis en cause the Attorney General of Quebec: Réal A. Forest, Ste‑Foy.
Solicitor for the mis en cause the Attorney General of Canada: Gaspard Côté, Montréal.